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THE SUPREME COURT 
IN UNITED STATES HISTORY 



Volume One 




JOHN JAY 
From the portrait by Gilbert Stuart. 



THE SUPREME COURT 



IN 



UNITED STATES HISTORY 



BY 



CHARLES WARREN 

It 

FORMERLY ASSISTANT ATTORNEY-GENERAL OF THE UNITED STATES 

AUTHOR OF U A HISTORY OF THE AMERICAN BAR " 



IN THREE VOLUMES 

Volume One 

1789-1821 j 




BOSTON 

LITTLE, BROWN, AND COMPANY 

1922 



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3« 



4> x 



Z/f \ 



Copyright, 1922, 
By Little, Brown, and Company. 



All rights reserved 
Published May, 1922 






Pointed in the United States of Amerioa 



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V 



PREFACE 

This book is not a law book. It is a narrative of a 
section of our National history connected with the 
Supreme Court, and is written for laymen and lawyers 
alike. As words are but "the skin of a living 
thought ",* so law cases as they appear in the law re- 
ports are but the dry bones of very vital social, politi- 
cal and economic contests ; they have lost all fleshly 
interest. This book is an attempt to revivify the im- 
portant cases decided by the Court and to picture the 
Court itself from year to year in its contemporary set- 
ting. 

For those who wish a recital of the decisions and a 
collection of the biographies of the Judges, other his- 
tories of the Court are available (such as Hampton L. 
Carson's, prepared at the time of the Centennial of 
the Federal Judiciary). For those who wish a state- 
ment of the doctrines of constitutional law established 
in the long line of opinions of the Court, there are nu- 
merous technical law books to supply their needs. 
But for those who wish to view the Court and its de- 
cided cases, as living elements and important factors 
in the course of the history of the United States, there 
are few published works, other than Gustavus Myers' 
History of the United States Supreme Court (written 
from a purely Socialistic standpoint), and Albert J. 
Beveridge's masterly Life of John Marshall. (The 

1 "A word is not a crystal, transparent and unchanged, it is the skin of a living 
thought and may vary greatly in color and content according to the circumstances 
and the time in which it is used." Holmes, J., in Towne v. Eisner (1918), 245 
U. S. 418, 425. 



vi PREFACE 

chapters of my book covering the period described by 
Beveridge were completed before the publication of 
his work; they are written, however, from an entirely 
different standpoint, and without any attempt to rival 
his dramatic depiction of personalities.) 

While the Court's history might be set forth more 
logically by tracing continuously the development of 
the doctrines established by the decided cases, I have 
purposely described it, Term by Term, in order that 
its decisions might be the better correlated, in the 
reader's mind, with the political events in the Nation's 
history. I have laid particular stress upon the views 
taken of the Court and of its important cases by con- 
temporary writers and statesmen; for the impression 
made upon the public by the Court's decisions has 
often had as great an effect upon history as have the 
decisions themselves. At the same time, I have 
pointed out that contemporary appraisal of men and 
events is frequently mistaken, and that (as has been 
well said) destiny may laugh it to scorn. I have em- 
phasized the important part which the attacks upon 
the Court have played; for such attacks have often 
affected or modified the status of the Court and of its 
decisions. In carrying out this plan of preserving, 
as far as possible, the atmosphere of the times, I have 
quoted with considerable fullness from articles and 
letters appearing in newspapers, magazines, and else- 
where. 1 While such a method of writing history tends 
to discursiveness and may offend some historical tech- 
nicians, I have deliberately decided to run that risk. 



1 In estimating the effect of newspapers upon public opinion, the reader must 
bear in mind that in the eighteenth century and for the first half of the nineteenth 
century, the editorials and articles of the Washington papers and the editorials 
and Washington correspondence of the leading New York, Boston, Philadelphia, 
and Richmond papers, dealing with the Court and its important cases, were widely 
copied and reproduced in newspapers throughout the country. 



PREFACE vii 

I have not attempted a detailed description of the 
Court and of its important cases later than the close 
of the Chief Justiceship of Waite. The succeeding 
thirty years of Chief Justices Fuller and White com- 
prise a period so recent and so clearly within the view 
of living men as to render such detailed treatment un- 
necessary. Moreover, the proper historical perspec- 
tive is lacking. Accordingly, I have given but a broad 
general outline of the leading cases and doctrines dur- 
ing the years 1888 to 1918. 

No one can read the history of the Court's career 
without marveling at its potent effect upon the polit- 
ical development of the Nation, and without con- 
cluding that the Nation owes most of its strength to 
the determination of the Judges to maintain the Na- 
tional supremacy. Though, from time to time, Judges 
have declared that the preservation of the sovereignty 
of the States in their proper sphere was as important 
as the maintenance of the rights vested in the Nation, 
nevertheless, the Court's actual decisions at critical 
periods have steadily enhanced the power of the Na- 
tional Government; and the result has been that, as 
Edward S. Corwin has recently said in his John Mar- 
shall: "The Court was established under the sway of 
the idea of the balance of power. . . . The Nation 
and the States were regarded as competitive forces, 
and a condition of tension between them was thought 
to be not only normal, but desirable. The modern 
point of view is quite different. Local differences 
have to a great extent disappeared, and that general 
interest which is the same for all the States is an ever- 
deepening one." It is interesting to surmise what 
would have been the status of the United States today, 
had the Judges, after appointment to the Supreme 
Bench, adopted or continued to hold the narrower 



Vlll 



PREFACE 



views of National authority and the broader views of 
the sovereignty of the individual States, which were 
undoubtedly held by most of the frarners of the Con- 
stitution. To untrammeled intercourse between its 
parts, the American Union owes its preservation and 
its strength. Two factors have made such intercourse 
possible — the railroad, physically ; the Supreme Court, 
legally. 1 

In order to emphasize the subject-matter of this 
work, I have intentionally (and despite some modern 
purists in typography) used capital letters, in connec- 
tion with the words "Court", " Bench" (when synony- 
mous with Court), "Judge", "Judiciary", "Bar", 
"State-Rights" and "Nation", both in the quoted 
as well as in the original matter. 2 For conciseness, 
in referring to members of the Court, I have inten- 
tionally used the word "Judge", instead of the more 
technically accurate "Associate Justice." 

As much new material has been gathered from un- 
published MSS., I desire to acknowledge gratefully 
the courteous assistance which I have received from 
library officials, in connection with my use of the fol- 
lowing MSS. collections : papers of George Wash- 
ington, John Breckenridge, Harry Innes, John Mar- 
shall, Thomas Jefferson, James Madison, James A. 
Bayard, James Monroe, Csesar A. Rodney, Joseph II. 
Nicholson, William Wirt, Smith Thompson, James 

1 " If the system of internal improvements could go on for .1 few years with 
vigor . . . this Union would be bound by ties stronger than all the Constitu- 
tions that human wisdom could devise. A railroad from New England to Georgia 
would do more to harmonize the feelings of the whole country, than any amend- 
ments that can be offered or adopted to the Constitution. It is intercourse we 
want." So wrote Abbott Lawrence of Boston to Henry Clay, March 2G. 
Works of Henry Clay (1855), IV. 

2 As the statesmen, letter writers and newspapers, from 1789 through the first 
quarter of the nineteenth century, used capital letters according to the wbim of 
the moment, and with no apparent logical system, I have preferred to preserve a 
uniformity of typography rather than an exact reproduction of their whims. 



PREFACE 



IX 



Kent, John J. Crittenden, Martin Van Buren, Andrew 
Jackson, John McLean, John M. Clayton, Daniel 
Webster, Gideon Granger, Francis Granger, Thurlow 
Weed, Benjamin R. Curtis, and Franklin Pierce (in 
the Library of Congress) ; James Wilson, Richard 
Peters, and John Sergeant (in the Library of the His- 
torical Society of Pennsylvania) ; papers of Joseph 
Story and Timothy Pickering (in the Massachusetts 
Historical Society) ; papers of William Paterson 
(George Bancroft copies) (in the New York Public 
Library) ; and papers of Charles Sumner (in the Har- 
vard College Library). 

I cannot expect entire freedom from mistakes in a 
book containing such a mass of detail and citation ; 
but I indulge in the hope that the reader, overlooking 
errors which "like straws upon the surface float", 
will emerge from the depths, bringing with him a new 
and enlarged conception of the Supreme Court's place 
in American history. 

Charles Warren. 

Washington, D. C-, 
March, 1922. 



CONTENTS 



Volume One 



Preface 

Abbreviations of Titles of Books Frequently Cited 



PAGE 

V 

XV 



Introductory Chapter .... 

I. The First Courts and the Circuits 

L ^il. State Sovereignty and Neutrality . 

III. Chief Justices Rutledge and Ellsworth 

A^IV. Marshall, Jefferson and the Judiciary 

/V. The Mandamus Case 

VI. Impeachment and Treason 
VII. Judge Johnson and the Embargo 
'VIII. Pennsylvania and Georgia against the Court 
is IX. Judge Story, the War and Federal Su- 
premacy 

X. The Judges and the Court-rooms . 

XI. Corporate Charters and Bankruptcy 

XII. The Bank of the United States 



1 
31 
91 
124 
169 
231 
269 
316 
366 

400 
454 
474 
499 



Volume Two 



Abbreviations of Titles of Books Frequently Cited 

XIII. Virginia against the Court 

XIV. International Law 
XV. The Steamboat Monopoly Case 

XVI. Kentucky against the Court . 

XVII. Judiciary Reform 

XVIII. Constitutional Law and Daniel Webster 



IX 

1 

25 

47 

93 

112 

146 



xii CONTENTS 



CHAPTER 



PAGE 



y XIX. The Cherokee Cases and President Jack- 
son 189 

XX. The Last Years of Chief Justice Mar- 
shall 240 

XXI. Chief Justice Taney and Whig Pessimism 275 

XXII. Corporations and Slavery] .... 313 
XXIII. Federal Powers, Tyler and the Girard 

Will Case 357 

\/XXIV. State Powers, Commerce and Boundaries 408 

XXV. Slavery and State Defiance . . . 480 

Volume Three 



Abbreviations of Titles of Books Frequently Cited ix 

XXVI. The Dred Scott Case 1 

XXVII. The Booth Case, and Congressional At- 
tacks 42 

XXVIII. Civil War and Chief Justice Chase . . 80 
XXIX. The Milligan Case . . . . .140 

XXX. Reconstruction 177 

XXXI. The Legal Tender Cases . . . .220 
XXXII. The Slaughterhouse Cases and the 

Death of Chase 255 

XXXIII. Chief Justice Waite and the Fourteenth 

Amendment 284 

XXXIV. The Civil Rights Acts .... 322 
XXXV. Increase of Nationalism .... 344 

XXXVI. Expansion of Judicial Powers . . . 385 

XXXVII. Chief Justices Fuller and White . .413 

XXXVIII. Commerce and the Police Power . .451 

Appendix: List of Persons Nominated as Chief Jus- 
tice and as Associate Justice of the Supreme Court 
of the United States, 1789-1921 479 

Index " 485 



ILLUSTRATIONS 



Volume One 



JOHN JAY Frontispiece 

From the portrait by Gilbert Stuart. 



PAGE 



THE FIRST COURT-ROOM IN THE CAPITOL, 
1801-1808, NOW THE OFFICE OF THE MARSHAL 
OF THE COURT 170 

WILLIAM JOHNSON 316 

From the painting by John Jarvis, in the possession of 
the New York Historical Society. Reproduced from 
Hampton L. Carson's "The Supreme Court of the United 
States" by permission of the publishers. 

JOSEPH STORY .316 

After the engraving by J. Cheney from a crayon draw- 
ing by W. W. Story. 

DANIEL WEBSTER IN 1825 474 

From a study by Gilbert Stuart. 

WILLIAM WIRT 474 

From the portrait by Henry Inman in the possession 
of the Boston Athenaeum. 

WILLIAM PINKNEY 508 

After an engraving from the portrait by Chappeh 



mi 



ABBREVIATIONS OF TITLES OF BOOKS 
FREQUENTLY CITED 

[For the purpose of conciseness in the citation of books most frequently 
quoted, the following abbreviations have been used in the notes.] 

J. Q. Adams, Memoirs of John Quincy Adams (1874-1877), edited 

by Charles Francis Adams, 12 vols. 
J. Q. Adams' Writings, The Writings of John Quincy Adams (1913- 

1915), edited by Worthington Chauncey Ford, 7 vols. 
Clay, The Works of Henry Clay (1904), edited by Calvin Colton, 

Federal edition, 10 vols. 
Curtis, The Life and Writings of Benjamin Robbins Curtis, LL.D. 

(1879), edited by Benjamin R. Curtis, 2 vols. 
Hamilton, The Works of Alexander Hamilton (1904), edited by 

Henry Cabot Lodge, 12 vols. 
Hamilton (Lodge's ed.), The Works of Alexander Hamilton (1885- 

1886), edited by Henry Cabot Lodge, 9 vols. 
Hamilton (J. C. Hamilton's ed.), The Works of Alexander Hamilton 

(1850-1851), edited by John Church Hamilton, 7 vols. 
Iredell, Life and Correspondence of James Iredell (1858), edited by 

Griffith John McRee, 2 vols. 
Jay, The Correspondence and Public Papers of John Jay (1890- 

1893), edited by Henry Phelps Johnston, 4 vols. 
Jefferson, The Works of Thomas Jefferson (1904-1908), edited 

by Paul Leicester Ford, 12 vols. 
Jefferson (A. C. Lipscomb ed.), The Writings of Thomas Jefferson 

(1903-1904), edited by Andrew C. Lipscomb, 20 vols. 
Jefferson (H. A. Washington ed.), The Writings of Thomas Jeffer- 
son (1853-1854), edited by Henry Augustine Washington, 

9 vols. 
King, The Life and Correspondence of Rufus King (1894-1900), 

edited by Charles Ray King, 6 vols. 
Madison, The Writings of James Madison (1906-1910), edited 

by Gaillard Hunt, 9 vols. 
Madison (1865), Letters and Other Writings of James Madison 

(1865), published by order of Congress, 4 vols. 
Marshall, Life of John Marshall (1916-1919), by Albert Jeremiah 

Beveridge, 4 vols. 



xvi ABBREVIATIONS OF TITLES OF BOOKS 

Mason, Memoir and Correspondence of Jeremiah Mason (1873) 

edited by George S. Hillard. 
Monroe, The Writings of James Monroe (1898-1903), edited by 

Stanislaus Murray Hamilton, 7 vols. 
Story, Life and Letters of Joseph Story (1851), by William Waldo 

Story, 2 vols. 
Sumner, Memoir and Letters of Charles Sumner (1877-1893), by 

Edward Lillie Pierce, 4 vols. 
Taney, Memoir of Roger Brooke Taney (1872), by Samuel Tyler. 
Ticknor, Life, Letters and Journals of George Ticknor (1876), 2 vols. 
Washington, Writings of George Washington (1834-1837), edited 

by Jared Sparks, 11 vols. 
Washington (Ford's ed.), Writings of George Washington (1886- 

1893), edited by Worthington Chauncey Ford, 14 vols. 
Webster, The Writings and Speeches of Daniel Webster (1903), 

18 vols. 
Wirt, Memoirs of the Life of William Wirt (1849), by John Pen- 
dleton Kennedy, 2 vols. 



THE SUPREME COURT 
IN UNITED STATES HISTORY 



THE SUPREME COURT 
IN UNITED STATES HISTORY 



VOLUME ONE 



INTRODUCTORY CHAPTER 

The history of the United States has been written not 
merely in the halls of Congress, in the Executive offices 
and on the battlefields, but to a great extent in the 
chambers of the Supreme Court of the United States. 
" In the largest proportion of causes submitted to its 
judgment, every decision becomes a page of history." * 
"In not one serious study of American political life," 
said Theodore Roosevelt at a dinner of the Bar in 
honor of Judge Harlan in 1902, "will it be possible 
to omit the immense part played by the Supreme 
Court in the creation, not merely the modification, of 
the great policies, through and by means of which the 
country has moved on to her present position. . . . 
The Judges of the Supreme Court of the land must be 
not only great jurists, they must be great constructive 
statesmen, and the truth of what I say is illustrated by 

1 Attorney -General George W. Wickersham, in his address before the Bar of 
the Court, on the death of Chief Justice Fuller, 219 TJ. S. xv. Henry Adams' 
statement in his History of the United States (1890), IV, 265, that "history has 
nothing to do with law except to record the development of legal principles", is 
singularly inept, for the law as enounced by the Court has made much of the his- 
tory of the country. See also Historical Lights from Judicial Decisions, by Edward 
Cahill, Michigan Law Review (1908), VI. 

VOL. I — 1 



2 THE SUPREME COURT 

every study of American statesmanship." The vitally 
important part, however, which that Court has played 
in the history of the country in preserving the Union, 
in maintaining National supremacy within the limits 
of the Constitution, in upholding the doctrines of inter- 
national law and the sanctity of treaties, and in affect- 
ing the trend of the economic, social and political de- 
velopment of the United States, cannot be understood 
by a mere study of its decisions, as reported in the law 
books. The Court is not an organism dissociated from 
the conditions and history of the times in which it ex- 
ists. It does not formulate and deliver its opinions in 
a legal vacuum. Its Judges are not abstract and im- 
personal oracles, but are men whose views are neces- 
sarily, though by no conscious intent, affected by in- 
heritance, education and environment and by the im- 
pact of history past and present ; and as Judge Holmes 
has said : "The felt necessities of the time, the preva- 
lent moral and political theories, intuitions of public 
policy, avowed or unconscious, even the prejudices 
which Judges share with their fellow-men, have had a 
good deal more to do than the syllogism in determining 
the rules by which men should be governed." 1 

Appointments to the Court, moreover, have not been 
made from a cloister of juridical pedants, but from the 
mass of lawyers and Judges taking active parts in the 
life of the country. 2 Presidents, in selecting Judges, have 
been necessarily affected by geographical and political 
considerations, since it has been desirable that the Court 
should be representative (so far as practicable) of the 
different sections of the country and of the leading 
political parties. The Senate, in rejecting for partisan 

L^. 1 The Common Law (1881), by Oliver Wendell Holmes, Jr. 

2 "While an ' overspeaking Judge is no well-tuned cymbal', neither is an amor- 
phous dummy, unspotted by human emotions, a becoming receptacle for judicial 
power." McReynolds, J. (diss.), in Berger v. United States (1921), 255 U. S. 43. 



INTRODUCTORY CHAPTER 3 

reasons nominees of eminent legal ability, has more 
than once influenced the course of history. The char- 
acter and capacity of counsel taking part in cases have 
been elements which require consideration, since the 
arguments of great jurists and great statesmen com- 
mand an attention and afford an assistance to the 
Court which may powerfully affect the trend of the 
law. 1 The reaction of the people to judicially declared 
law has been an especially important factor in the de- 
velopment of the country ; for while the Judges' 
decision makes law, it is often the people's view of the 
decision which makes history. Hence, the effect pro- 
duced upon contemporary public opinion has fre- 
quently been of more consequence than the actual de- 
cision itself ; and in estimating this effect, regard must 
be paid to the fact that, while the law comes to lawyers 
through the official reports of judicial decisions, it 
reaches the people of the country filtered through the 
medium of the news-columns and editorials of partisan 
newspapers and often exaggerated, distorted and col- 
ored by political comment. Finally, it is to be noted 
that Congress, in its legislation enacted as a result of 
judicial decisions, has always played a significant part 
in relation to the Court. For all these reasons, the true 
history of the Court must be written not merely from 
its reported decisions but from the contemporary news- 
papers, letters, biographies and Congressional debates 
which reveal its relations to the people, to the States 
and to Congress, and the reactions of those bodies to 

1 In Sauer v. New York (1907), 206 U. S. 536, McKenna, J. (diss.), said : "The ele- 
vated railroad cases get significance from the argument of counsel. Such argu- 
ments, of course, are not necessarily a test of the decision, but they may be. The 
opinion may respond accurately to them." In Bridge Proprietors v. Hoboken etc. Co. 
(1864), 1 Wall. 516, Miller, J., spoke of a case as one "argued at much length by 
Mr. Webster, Mr. Sergeant and Mr. Clayton whose names are a sufficient guar- 
antee that the matter was well considered." See also comments on the value of 
arguments by able counsel in Woods v. Lawrence Co. (1862), 1 Black, 386. 



4 THE SUPREME COURT 

its decisions. Recourse to such evidence of contem- 
porary opinion and criticism of the Court is especially 
necessary for an understanding of the degree to which 
opposition to the Court and popular counter-movements 
have affected the history of the country at different 
periods. Of the great political revolution of 1800 which 
destroyed the Federalist Party, the public attitude to- 
wards the National Judiciary was no small cause. In 
bringing about the rise of Jacksonian Democracy, the 
antagonism caused in many States by John Marshall's 
decisions was a potent factor. The attitude of the 
Court on questions arising out of the slavery issue was 
closely connected with the outbreak of the Civil War. 
The violent Republican onslaught on the Court for its 
courageous and notable opinions at the end of the War 
reacted on the whole unfortunate course of Recon- 
struction. Nothing in the Court's history is more strik- 
ing than the fact that, while its significant and neces- 
sary place in the Federal form of Government has 
always been recognized by thoughtful and patriotic men, 
nevertheless, no branch of the Government and no in- 
stitution under the Constitution has sustained more 
continuous attack or reached its present position after 
more vigorous opposition. It was, however, inevit- 
able from the outset that the Court's powers, its 
jurisdiction and its decisions should be the subject of 
constant challenge by one political party or the other ; 
for a tribunal whose chief duty was that of determining 
between conflicting jurisdictions in a Federal form of 
Government could not hope to escape criticism, invec- 
tive, opposition and even resistance. 1 One interest- 

1 See Centralization and the Law (1908), by Melville M. Bigelow, 55 ; William Tudor 
wrote in 1816 in North Amer. Rev., Ill, 102 ■ "Whenever any set of men shall enter- 
tain designs against the Constitution, either to overwhelm it in the anarchy of 
simple democracy, or to found on its ruins a usurpation of monarchical power, 
they will commence their operations by open or insidious attacks to weaken and 
overthrow the Judiciary." 



INTRODUCTORY CHAPTER 5 

ing feature of the first century of its existence should 
be noted — that the chief conflicts arose over the Court's 
decisions restricting the limits of State authority and 
not over those restricting the limits of Congressional 
power. Discontent with its decisions on the latter 
subject arose, not because the Court held an Act of 
Congress unconstitutional, but rather because it re- 
fused to do so ; the Anti-Federalists and the early 
Republicans assailed the Court because it failed to 
hold the Sedition Law, the Bank of the United States 
charter and the Judiciary Act unconstitutional; the 
Democrats later attacked the Court for enouncing 
doctrines which would sustain the constitutionality of 
an Internal Improvement bill, a voluntary Bankruptcy 
bill, a Protective Tariff bill and similar measures ob- 
noxious to them ; the Federalists equally attacked the 
Court for refusing to hold unconstitutional the Em- 
bargo Act, and the later Republicans assailed it for 
sustaining the Fugitive Slave Act. It was in respect 
to its exercise of a restraining power over the States 
that the Court met with its chief opposition. That the 
Federal Judiciary would of necessity be the focus of at- 
tack in all important controversies between the States 
and the Nation was fully recognized by the framers 
of the Constitution, but it was the essential pivot of 
their whole plan. 1 The success of the new Govern- 
ment depended on the existence of a supreme tribunal, 
free from local political bias or prejudice, vested with 
power to give an interpretation to Federal laws and 
treaties which should be uniform throughout the land, 

1 Rufus King wrote to Jonathan Jackson, Sept. 3, 1786 : " Mr. Madison of Vir- 
ginia has been here for some time past ; he will attend the Convention. He does 
not discover or propose any other plan than that of investing Congress with full 
powers for the regulation of commerce foreign and domestic. But this power 
will run deep into the authorities of the individual States, and can never be 
well exercised without a Federal Judicial." Mass. Hist Soc. Proc. (1915-16), 
XLIX. 



6 THE SUPREME COURT 

to confine the Federal authority to its legitimate field 
of operation, and to control State aggression on the 
Federal domain. 1 

The history of the foundation of the Court in the 
proceedings of the Federal Convention of 1787 is too 
well known to need repetition. The initial step in 
establishing the supremacy of the new Federal Govern- 
ment was taken, on July 17, 1787, when Luther Martin 
of Maryland moved the adoption of the following resolu- 
tion: 

Resolved that the Legislative acts of the United States 
made by virtue and in pursuance of the articles of Union, 
and all treaties made and ratified under the authority of the 
United States shall be the supreme law of the respective 
States, as far as those acts or treaties shall relate to the said 
States, or their Citizens and inhabitants — and that the 
Judiciaries of the several States shall be bound thereby in 
their decisions, anything in the respective laws of the in- 
dividual States to the contrary notwithstanding. 

And this, in its final form, became the second clause 
of Article Six of the Constitution : 

This Constitution, and the Laws of the United States 
which shall be made in Pursuance thereof ; and all Treaties 
made, or which shall be made, under the Authority of the 
United States, shall be the supreme Law of the Land ; and 
the Judges in every State shall be bound thereby, any Thing 
in the Constitution or Laws of any State to the Contrary 
notwithstanding. 



our 



1 See The Supreme Court of the United States, Its History and Influence on 
Constitutional System (1890), by Westef'W. Willoughby ; Gordon v. United 
States (1864), 117 U. S. App. 700-701. "The reason for giving such unusual 
power to a judicial tribunal is obvious. It was necessary to give it from the com- 
plex character of the Government of the United States, which is in part National 
and in part Federal ; where two separate governments exercise certain powers of 
sovereignty over the same territory, each independent of the other within its ap- 
propriate sphere of action, and where there was, therefore, an absolute necessity, in 
order to preserve internal tranquillity, that there should be some tribunal to decide 
between the Government of the United States and the government of a State, when- 
ever any controversy should arise as to their relative and respective powers in the 
common territory. The Supreme Court was created for that purpose." 



INTRODUCTORY CHAPTER 7 

The supremacy of the Nation in its constitutional field 
of operation being thus established, the next step requi- 
site to the fulfillment of the purposes of theframers of the 
Constitution was the establishment of a tribunal which 
should have the power of enforcing throughout the Na- 
tion and in the States the supremacy of the Constitution 
and of the laws so asserted — an organ of Government, 
which should be, as Bryce has termed it, " the living 
voice of the Constitution." By the adoption of Sec- 
tions 1 and 2 of Article III, the framers completed their 
work in providing that : " The judicial Power of the 
United States shall be vested in one supreme Court, 
and in such inferior Courts as the Congress may from 
time to time ordain and establish" ; and by enumerating 
the cases to which the judicial power should extend, 
and the scope of the original and of the appellate juris- 
diction of the Supreme Court. 1 The structure of the 
National Judiciary being thus outlined, the Convention 
left to the First Congress the important tasks of settling 
the composition of the Supreme Court, of erecting 
inferior Courts, of framing modes of procedure, and — 
most important of all — of establishing the extent of the 
Supreme Court's appellate jurisdiction, both with refer- 
ence to State and inferior Federal Courts. The task 
thus imposed upon the Congress was of a most delicate 
nature ; for during the long contest over the adoption 
of the Constitution, after it left the hands of its framers, 
the Article relating to the Judicial branch of the new 
Government had been the subject of more severe 
criticism and of greater apprehensions than any other 
portion of the instrument. 2 Elbridge Gerry had com- 
plained that " there are no well-defined limits of the 

iSee Mushrat v. United States (1911), 219 U. S. 346. 

2 History of the Supreme Court of the United States (1891), by Hampton L. Car- 
son, 107-119. 



8 THE SUPREME COURT 

Judiciary powers; they seem to be left as a bound- 
less ocean that has broken over the chart of the Supreme 
Lawgiver." Edmund Randolph had objected to the 
lack of limitation or definition of the judicial power. 
George Mason had said that "the Judiciary of the 
United States is so constructed and extended as to 
absorb and destroy the Judiciaries of the several 
States." Richard Henry Lee had inveighed at length 
against the powers of the Federal Judiciary. Luther 
Martin and Patrick Henry had expressed grave fears of 
the system. On the other hand, the provisions of the 
Constitution respecting the judicial system had been 
eloquently supported by Edmund Pendleton, John 
Marshall, John Jay, James Wilson, James Iredell, 
James Madison and by Alexander Hamilton, both in 
speeches at the State Conventions and in pamphlets 
written in defense of the proposed new Government. 
It was with full comprehension of the difficulty of its 
task and of the opposition which it must overcome, that 
the First Congress undertook as one of its earliest tasks 
the completion of the judicial system ; and on April 7, 
1789, in the Senate, Oliver Ellsworth of Connecticut, 
William Paterson of New Jersey, William Maclay of 
Pennsylvania, Caleb Strong of Massachusetts, Richard 
Henry Lee of Virginia, William Few of Georgia and 
James Wingate of New Hampshire were appointed a 
committee to bring in a bill for organizing the Judiciary 
of the United States. The draft of the proposed bill 
was made by Ellsworth, who had been a prominent 
member of the Federal Convention. 1 The Chairman 
of the Committee, Lee, who as an Anti-Federalist 

1 T. Lowther wrote to James Iredell : " Enclosed is a bill for the establishment 
of the Judicial system, it was principally drawn up by a Mr. Ellsworth of Con- 
necticut, but it is supposed considerable alterations will be made before it passes 
both Houses. There are not many lawyers in the Senate, but they compose 
three-fourths of the Representatives." Iredell, II, 260, letter of July 1, 1789. 



INTRODUCTORY CHAPTER 9 

feared extension of Federal power, was at first inclined 
to be sanguine over the shape which the bill was taking. 
" In the Senate a plan is forming for establishing the 
Judiciary system," he wrote to Patrick Henry. " So 
far as this has gone, I am satisfied to see a spirit pre- 
vailing that promises to send this system out, free from 
those vexations and abuses that might have been 
warranted by the terms of the Constitution. It 
must never be forgotten, however, that the liberties 
of the people are not so safe under the gracious manner 
of government as by the limitation of power." * 
Another Anti-Federalist, however, William Maclay, 
Senator from Pennsylvania, deplored the fact that the 
bill " was fabricated by a knot of lawyers ", and stated 
that : " I really fear that it will be the gunpowder-plot of 
the Constitution. So confused and so obscure, it will not 
fail to give a general alarm. ... It certainly is a vile 
law system, calculated for expense and with a design to 
draw by degrees all law business into the Federal 
Courts. The Constitution is meant to swallow all the 
State Constitutions by degrees ; and thus to swallow, by 
degrees, all the State Judiciaries." 2 On the other hand, 
the importance of the bill as a measure designed to en- 
force the supremacy of the Constitution was fully recog- 
nized by the supporters of that instrument. Ellsworth 
wrote : " I consider a proper arrangement of the Judici- 
ary, however difficult to establish, among the best secur- 

1 The Letters of Richard Henry Lee (1914), ed. by James C. Ballagh, II, letter 
of Lee to Henry, May 28, 1789. The bill was reported by Lee, June 12, 1789 ; 
was given its second and third readings, June 22, July 7 ; was debated on July 8, 
9, 10, 11 ; passed the Senate by a vote of 14 to 6 on July 17, Lee voting against 
it ; was sent to the House, July 20, where it was debated from time to time until 
Sept. 17, when it passed with amendments. The bill was amended and referred 
in the Senate to a Committee consisting of Ellsworth, Paterson, and Pierce Butler 
of South Carolina; it was passed by the House again with the Senate changes, 
Sept. 21, and was signed by President Washington, Sept. 24, 1789. 

2 Sketches of Debates in the First Senate of the United States (1890), by William 
Maclay, entries of June 29, July 2, 7, 17, 1789. 



10 THE SUPREME COURT 

ities the government will have, and question much if any 
will be found more economical, systematic and efficient 
than the one under consideration. Its fate in the House 
of Representatives, or in the opinion of the public, I can- 
not determine." * And James Monroe wrote to James 
Madison: "That (the bill) to embrace the Judiciary 
will occasion more difficulty, I apprehend, than any 
other, as it will form an exposition of the powers of 
the Government itself, and show in the opinion of 
those who organized it, how far it can discharge its 
own functions, or must depend for that purpose 
on the aid of those of the States. Whatever ar- 
rangement shall be now made in that respect will be 
of some duration, which shows the propriety of a 
wise provision in the commencement." 2 In the House, 
fears as to the Federal Judiciary as an instrument of 
Federal encroachment on State authority were ex- 
pressed in the debates over the famous Twenty-Fifth 
Section which authorized writs of error to the Supreme 
Court on judgments of State Courts. 3 "It is much 
to be apprehended that this constant control of the 
Supreme Federal Court over the adjudication of the 
State Courts would dissatisfy the people and weaken 
the importance and authority of the State Judges," 

1 State Trials (1849), by Francis Wharton, letter of Ellsworth to Judge Richard 
Law, Aug. 7, 1789. 

2 Monroe, I, letter of Aug. 12, 1789. 

3 The progress of the bill in the House was commented on in the correspondence 
of Fisher Ames, the talented Federalist Congressman from Massachusetts, as fol- 
lows : " July 8, 1789. The Judiciary is before the Senate who make progress > 
Their committee labored upon it with vast perseverance and have taken as 
full a view of their subject as I ever knew a committee to take. Mr. Strong, Mr. 
Ellsworth and Mr. Paterson, in particular, have their full share of this merit. 
Sept. 3, 1789. You will see by the papers what pace we move in the discussion 
of the Judiciary bill. The question whether we shall have inferior tribunals (ex- 
cept admiralty courts, which were not denied to be necessary) was very formi- 
dably contested. Judge Livermore, and ten others, voted against them. You 
will see in Fenno's Gazette my speechicle on the subject. Sept. 7, 1789. The 
Judicial slumbers, and when it shall be resumed will probably pass as an experi- 
mental law, without much debate or amendment, in the confidence that a short ex- 
perience will make manifest the proper alterations." Works of Fisher Ames (1854,) I. 



INTRODUCTORY CHAPTER H 

said William Smith of South Carolina. 1 James Jack- 
son of Georgia opposed the Twenty -Fifth Section. "It 
swallows up every shadow of a State Judiciary. . . . 
In my opinion, and I am convinced experience will 
prove it, there will not, neither can there be, any suit 
or action brought in any State Courts but may under 
this clause be reversed or affirmed by being brought 
within the cognizance of the Supreme Court." Fisher 
Ames and Theodore Sedgwick of Massachusetts, 
Egbert Benson of New York, and James Madison of 
Virginia, on the other hand, advocated the proposed 
system ; and Roger Sherman of Connecticut closed the 
debate by arguing powerfully that the authority of the 
Federal Courts under this Section was necessary "to 
guard the rights of the Union against the invasion of 
the States. If a State Court should usurp the jurisdic- 
tion of Federal causes and by its adjudications at- 
tempt to strip the Federal Government of its constitu- 
tional rights, it is necessary that the National tri- 
bunal shall possess the power of protecting those rights 
from such invasion." 

The Judiciary Act was finally enacted on Septem- 
ber 24, 1789. It provided for a Supreme Court to 
consist of a Chief Justice and five Associate Judges ; 
for thirteen District Courts and for three Circuit 
Courts each to be composed of two Supreme Court 
Judges sitting with a District Court Judge ; it fixed the 
jurisdiction of the inferior Federal Courts ; and it pro- 
vided for appellate jurisdiction from the State Courts in 
certain cases presenting Federal questions. 2 With few 

l lst Cong., 1st Sess., Aug. 29, 1789. 

2 The official title of the Chief Justice seems to have varied at different periods 
of the Court's history. Jay was commissioned under the title of "Chief Justice 
of the Supreme Court of the United States ", as were Rutledge, Ellsworth, Mar- 
shall, Taney, Chase and Waite. Fuller was commissioned as "Chief Justice of 
the United States." The Constitution mentions the office of Chief Justice only 
once ; in Article One, Section three, relative to impeachments in which it is pro- 



12 THE SUPREME COURT 

essential changes, this great piece of legislation has re- 
mained the law of the country to the present day. 
" The wisdom and forethought with which it was 
drawn, have been the admiration of succeeding genera- 
tions," said a Judge of the Supreme Court in 1911. 
" This was probably the most important and the 
most satisfactory Act ever passed by Congress." 1 That 
this commendation was justified is unquestionable. 
Nevertheless, in considering the effect of the Act 
upon the history of the Court, attention must be 
paid to the fact that it received severe criticism from 
many contemporary lawyers and statesmen. Within a 
year after its enactment, Attorney-General Edmund 
Randolph made a lengthy report to the President, 
urging radical and extensive amendments. The early 
Judges of the Supreme Court constantly advocated 
important changes, especially in the provisions of the 
Act relating to Circuit Court duty. 2 William Grayson 
of Virginia wrote to Patrick Henry, immediately after 
the passage of the Act : ' The Judicial Bill has passed, 
but wears so monstrous an appearance that I think it 

vided — " When the President of the United States is tried, the Chief Justice shall 
preside." The Judiciary Act of Sept. 24, 1789, provided that the Supreme Court 
"shall consist of a chief justice and five associate justices." The Act of July 13, 
1866, c. 210, for the first time officially used the term "Chief Justice of the United 
States" providing that "thereafter the Supreme Court shall consist of a Chief 
Justice of the United States and six associate justices." The Act of April 10, 
1869, c. 22, provided that the Court shall "hereafter consist of the Chief Justice 
of the United States and eight associate justices."- The Revised Statutes, Section 
673, and the Act of March 3, 1911, c. 231, codifying the laws relating to the judi- 
ciary, Section 215, refer to "a Chief Justice of the United States." On the other 
hand, the statutes relating to the salaries of the Court, viz. : the Act of March 3, 
1873, c. 226, the Act of Feb. 12, 1902, c. 547, and the Act of March 3, 1911, c. 231, 
Section 218, all refer to "the Chief Justice of the Supreme Court of the United 
States." New England Historical and Genealogical Register (1895), XLIX, 275. 

1 Address of Mr. Justice Brown before the American Bar Association, August 
20, 1911. As to the history and scope of this Act, see Virginia v. Rives (1880), 
100 U. S. 313, 338; Tennessee v. Davis (1880), 100 U. S. 257, especially dissenting 
opinion of Clifford, J. ; United States v. Holliday (1866), 3 Wall. 417. See also 
Genesis of the Federal Judiciary System, by W. B. Richards, Virg. State Bar Assn. 
(1904), XVII. 

2 See infra, 86-90. 



INTRODUCTORY CHAPTER IS 

will be felo-de-se in the execution. . . . Whenever the 
Federal Judiciary comes into operation, I think the 
pride of the States will take alarm which, added to the 
difficulty of attendance from the extent of the district 
in many cases, the ridiculous situation of the venue, 
and a thousand and other circumstances, will in the 
end procure its destruction. The salaries, I think, are 
rather high for the temper or circumstances of the 
Union and furnish another cause of discontent to 
those who are dissatisfied with the Government." * 
At the same time, John Brown, a Congressman from 
Kentucky, wrote : "I fear in the administration of it 
great difficulties will arise from the concurrent jurisdic- 
tions of the Federal with the State Courts which will 
unavoidably occasion great embarrassment and clash- 
ing. But it is absolutely necessary to pass a Judiciary 
Law at this session, and the one which passes is as good, 
I believe, as we at present could make it. Experience 
may point out its defects." Another Congressman 
writing from New York, September 14, said : ' The 
Judicial Bill is now under consideration by Congress. 
This Department, I dread as an awful Tribunal ... by 
its institution, the Judges are completely independent, 
being secure of their salaries, and removable only by 
impeachment, not being subject to discharge on address 
of both Houses as is the case in Great Britain." 2 
And William R. Davie, the leader of the Bar in North 
Carolina, wrote to Judge Iredell, August 2, 1791 : "I 
sincerely hope something will be done at the next 
session of Congress with the Judiciary Act; it is so 
defective in point of arrangement, and so obscurely 
drawn or expressed, that, in my opinion, it would 

1 Letters and Times of the Tylers (1884), by Lyon G. Tyler, letter of Sept. 29, 
1789 ; Harry Innes Payers MSS, letter to Harry Innes, Sept. 28, 1789. 

2 See Oracle of the Day (Portsmouth, N. H.), quoted in General Advertiser (Phil.), 
June 9, 1795. 



14 THE SUPREME COURT 

disgrace the composition of the meanest Legislature of 
the States." 

Later attacks upon the Federal judicial system have 
been largely attributable to the fact that neither 
of the two great powers which the Supreme Court 
has exercised in interpreting and maintaining the su- 
premacy of the Constitution were granted in express 
terms in the instrument itself. For the power to pass 
upon the constitutional validity of State legislation was 
conferred by Congress by this Twenty-Fifth Section 
of the Judiciary Act, in pursuance of the general power 
of Congress to pass all acts "necessary and proper for 
carrying into execution ... all other powers vested 
by this Constitution in the Government of the United 
States", and in order to make effective the provision 
of Article Six, to the end that the Constitution and 
the Laws of the United States should be the supreme law 
of the land. And the Court's power to pass on the 
constitutional validity of Federal legislation was es- 
tablished by decisions of the Court itself, as an inherent 
and necessary judicial function in ascertaining and 
interpreting what the finally binding law was. 1 Yet 
as Madison said in 1832, a supremacy of the Constitu- 
tion and laws of the Union " without a supremacy in the 
exposition and execution of them would be as much a 
mockery as a scabbard put into the hands of a soldier 
without a sword in it. I have never been able to see 
that, without such a view of the subject, the Constitu- 
tion itself could be the supreme law of the land ; or 

1 Edward S. Corwin in his illuminating book on The Doctrine of Judicial Review 
(1914), 17, takes this position that the power was not to be implied from the pro- 
visions of either Article III or Article VI of the Constitution, but was "the natural 
outgrowth of ideas that were common property in the period when the Constitu- 
tion was framed. . . . We are driven to the conclusion that judicial review was 
rested by the framers of the Constitution upon certain general principles which 
in their estimation made specific provision for it unnecessary, in the same way as, 
for example, certain other general principles made unnecessary specific provision 
for the President's power of removal." 



INTRODUCTORY CHAPTER 15 

that the uniformity of the Federal authority throughout 
the parties to it could be preserved ; or that, without 
this uniformity, anarchy and disunion could be pre- 
vented." The possession of these powers by the 
Court, moreover, is vital to the preservation not merely 
of our form of Government, but of the rights and liber- 
ties of the individual citizen. "Its exercise," said 
Judge Field at the Centennial Celebration of the 
Court, "is necessary to keep the administration of the 
Government, both of the United States and of the States 
in all their branches, within the limits assigned to them 
by the Constitution of the United States and thus 
secure justice to the people against the unrestrained 
legislative will of either — the reign of law against 
the sway of arbitrary power." l In any community, 
the fullness and sufficiency of the securities which sur- 
round the individual in the use and enjoyment of his 
property and his liberty constitute one of the most cer- 
tain tests of the character and value of the government ; 
and the chief safeguard of the individual's right is to be 
found in the existence of a Judiciary vested with 
authority to maintain the supremacy of law above the 
possession and exercise of governmental power. If the 
result of an infringement of a written Constitution by 
the Legislature is to be avoided, "there must be a 
tribunal to which an immediate appeal for redress can 
be made by any person who is damnified by the action 

1 John C. Calhoun in the Nullification debate in 1833 said that the power of the 
Court "had its origin in the necessity of the case. Where there were two or more 
rules established, one from a higher, and the other from a lower authority, which 
might come into conflict in applying them to a particular case, the Judge could 
not avoid pronouncing in favor of the superior against the inferior. It was from 
this necessity, and this alone, that the power which is now set up to overrule the rights 
of the States, against an express provision of the Constitution, was derived. It 
had no other origin. That he had traced it to its true source would be manifest 
from the fact that it was a power which, so far from being conferred exclusively 
on the Supreme Court, as was insisted, belonged to every Court, inferior and supe- 
rior. State and general." 22d Cong., 2d Sess., Feb. 15, 1833. 



16 THE SUPREME COURT 

of the Legislature ; and the tribunal which affords re- 
dress in such case necessarily exercises judicial power, 
because it declares what is, and what is not, law, and 
applies what it declares to be law to the facts submitted 
to its investigation." * 

It must be admitted, however, that of the two powers 
vested in the Court for the enforcement of the suprem- 
acy of the Constitution, its power to pass upon the 
constitutionality of Congressional legislation may 
fairly be termed of the lesser importance. During 
the first eighty years, only four Federal statutes were 
held unconstitutional, of which but two were of any 
importance ; and even if the Court had possessed no 
power to determine the validity of either of these two, 
the Mandamus Act in Marbury v. Madison, and the 
Missouri Compromise Act in the Dred Scott Case, it 
cannot be said that the course of events would have 
been fundamentally affected. So with regard to the 
thirty-two Acts of Congress held unconstitutional be- 
tween 1869 and 1917, with the possible exception 
of the decision in the Civil Rights Cases, the integral 
history of the country would have been little altered 
had the Court not possessed or exercised its power. 2 
Probably the chief argument in favor of the possession 
of such power is the lack of uniformity of Federal law 
which would otherwise result, if each State Court should 
remain the final arbiter as to the constitutionality of 
Acts of Congress. An illustration of the unfortunate 
legal and financial complications and of the serious 
impairment of the functions of the Federal Government 
which might arise out of such a condition occurred in 

1 The Supremacy of the Judiciary, by A. Inglis Clark, Harv. Law Rev. (1903), 
XVII. 

% 2 From the October Term of 1889 to the October Term of 1917, "the Gourt 
declared only eighteen Acts of Congress unconstitutional in whole or in part, and 
but few of them were of such general importance as to call for extended attention." 
Judicial Control over Legislatures, by J. H. Ralston, Amer. Law Rev. (1920), LIV. 



INTRODUCTORY CHAPTER 17 

1870, when the Kentucky Courts had held the Legal 
Tender Act invalid, while the Courts of other States 
held the contrary. 1 Nevertheless, on the whole, it is 
probably true that, as Judge Holmes recently said, 
"The United States would not come to an end if 
we lost our power to declare an Act of Congress 
void." 2 

If, on the contrary, the Court should be deprived of 
its other power — that of determining the unconstitu- 
tionality of State laws, it is unquestionably true that 
the successful operation of the Federal system of 
government would be endangered. "I do think the 
Union would be imperilled," said Judge Holmes, "if 
we could not make that declaration as to the laws of the 
several States. For one in my place sees how often 
a local policy prevails with those who are not trained to 
National views, and how often action is taken that em- 
bodies what the Commerce Clause was meant to end." 
" The power given to the Supreme Court by this (Judi- 
ciary) Act," said Chief Justice Taney, "was intended to 
protect the General Government in the free and un- 
interrupted exercise of the powers conferred on it by 
the Constitution, and to prevent any serious impedi- 
ment feeea- being thrown in its way while acting within 



1 See The Fundamental Law and the Power of the Courts, by Herbert Pope, Harv. 
Law Rev. (1913), XXVII. 

2 Address of Judge Oliver Wendell Holmes before the Harvard Law School Asso- 
ciation on Law and the Court, Feb. 15, 1913. Speeches of Oliver Wendell Holmes 
(1913). It has been sometimes remarked that the existence of the judicial power 
has unquestionably tended to cause Congress to evade its own responsibility, and 
to enact statutes the constitutional validity of which it doubted, relying on the 
Court to hold them invalid. "There is every reason to think that Legislatures have 
passed bills, knowing them to be unconstitutional, in order to place the onus of 
declaring them so on the Courts." Property and Contract in Their Relations to 
Distribution of Wealth (1918), by Richard T. Ely; The New York Employers Lia- 
bility Act, by Judge A. A. Bruce, Michigan Law Rev. (1911), IX. In Evans v. Gore 
(1920), 253 U. S. 245, 248, the Court said: "Moreover, it appears that, when this 
taxing provision was adopted, Congress regarded it as of uncertain constitutional- 
ity and both contemplated and intended that the question should be settled by 
us in a case like this." 



18 THE SUPREME COURT 

the sphere of its legitimate authority." * Its great 
purpose was to avoid conflict of decision between State 
and Federal authorities, to secure to every litigant 
whose rights depended on Federal law a decision by the 
Federal Courts, and to prevent the Courts of the 
several States from impairing the authority of the 
Federal Government ; and had the Court not been 
vested with this power, it may well be doubted whether 
the National Union could have been preserved. It was 
not without reason that John C. Calhoun deemed this 
Section "the entering wedge", destroying, as he be- 
lieved, "the relation of co-equals and co-ordinates 
between the Federal Government and the Governments 
of the individual States. . . . The effect of this," he 
said, "is to make the Government of the United States 
the sole judge, in the last resort, as to the extent of its 
powers. ... It is the great enforcing power to compel a 
State to submit to all acts. . . . Without it, the whole 
course of the Government would have been different — 
the conflict between the co-ordinate Governments, in 
reference to the extent of their respective powers, would 
have been subject only to the action of the amending 
power, and thereby the equilibrium of the system been 
preserved, and the practice of the Government made to 
conform to its Federal character." 2 That Calhoun 
rightly attributed to the operation of this Section the 
development of the Government on the National rather 
than on the Federal theory and into a Nation rather 
than into a Confederacy must be acknowledged by all 
who read the opinion of Chief Justice Marshall in 
Cohens v. Virginia — that opinion which has been 

1 Commercial Bank of Kentucky v. Griffith (1840), 14 Pet. 58; Missouri v. An- 
driano (1891), 138 U. S. 497; Virginia v. Rives (1880), 100 U. S. 338; Mur- 
dock v. Memphis (1875), 20 Wall. 590. 

2 Disquisition on the Constitution and Government of the United States (1851), by 
John C. Calhoun. 317-340. 



INTRODUCTORY CHAPTER 19 

termed "one of the strongest and most enduring strands 
of that mighty cable woven by him to hold the American 
people together as a united and imperishable nation." 1 

Moreover, it has been through the exercise of this 
power to pass upon the validity of State statutes, un- 
der the Judiciary Act, that the Court has largely con- 
trolled and directed the course of the economic and 
social development of the United States. It is diffi- 
cult to imagine what the history of the country would 
have been if there had been no Dartmouth College 
Case on the security of corporate charters ; no M c- 
Culloch v. Maryland on the right of a State to tax a 
National agency ; no Gibbons v. Ogden on interstate 
commerce ; no Brown v. Maryland or Passenger Cases 
on foreign commerce ; no Craig v. Missouri on 
State bills of credit ; no Charles River Bridge Case 
on State powers over corporations ; no Slaughterhouse 
Cases on the scope of the Fourteenth Amendment. 
If it should be answered that, even if this Section 
did not exist, the question of the validity of a State 
statute might in some cases have arisen and been 
determined in suits in the Circuit Courts of the United 
States, and might have thus reached the Supreme 
Court from the inferior Federal Courts, this may be 
admitted ; and yet it would have been a slender reed 
on which to rest the enforcement of the supremacy 
of the Constitution over conflicting State legislation. 2 

But while it may be truly said that to the existence 

1 Marshall, IV, 343. 

2 In the first place, suits in the Federal Circuit Courts during the first seventy- 
six years of our judicial history (until 1866) were practically confined to cases 
based on diverse citizenship, so that the possibility of testing a State law would 
depend on its affecting a citizen of another State; in the second place, nothing 
could prevent a State from disregarding a judgment of the Supreme Court ren- 
dered in such a suit, or nullifying it by the simple device of making it a penal of- 
fense for a person to conform to the judgment of the Federal Court rather than to 
the provisions of the State law, and the validity of a conviction in a State Court 
under such a criminal statute could not have been tested in the Supreme Court. 



20 THE SUPREME COURT 

of the Twenty-Fifth Section of the Judiciary Act 
may be assigned the chief part of the influence which 
the Court has had upon the law and the development 
of the United States, it must be noted as one of the 
most significant features in the Court's history that 
the exercise of its powers under this Section has been 
the chief cause of attack upon the Court itself and 
upon its decisions. 

That the Court should have succeeded in maintain- 
ing itself in the confidence and respect of the people 
in the face of such constant assault is a remarkable 
tribute to its ability, integrity, independence, and 
impartiality, and a sign of popular belief in its pos- 
session of those qualities. For as an eminent State 
Judge has well said : "Judicial decisions upon the rights, 
powers, and attributes of the General and State Govern- 
ment, wherever the Constitution is silent, will often 
form a topic of much feeling and interest to the people, 
and of great moment to the Union. So much so, that it 
has occurred to my mind, as a peculiar and unanswerable 
reason, arising out of our system of government, why 
the American Judiciaries both State and Federal, 
even more than any other judicial tribunals on earth, 
should be so constituted as to stand independent of 
temporary excitement and unswayed by pride, popu- 
lar opinion or party spirit." l Fully conscious of 
this necessity, the Court has time and time again set 
its face firmly against the appeal of popular passions 
and prejudices, and the temporary cries of the momen- 
tary majority. " The Judiciary of the United States 
— independent of party, independent of power, and 
independent of popularity" was a toast given at a 
dinner in Washington in 1801 ; these words have 
expressed the aim, and substantially the achievement, 

1 Richardson, J., in City Council v. Weston (1824), 1 Harper (So. Car.) 340. ] 



INTRODUCTORY CHAPTER 21 

of the Court, in the one hundred and twenty years 
which have since elapsed. 1 " It is not for Judges 
to listen to the voice of persuasive eloquence or popu- 
lar appeal," said Judge Story in the Dartmouth College 
Case. "We have nothing to do but pronounce the 
law as we find it, and having done this, our justifi- 
cation must be left to the impartial judgment of 
our country." 2 Loose statements by some modern 
writers on law and sociology to the effect that the 
"Bench has always had an avowed partisan bias", 
are not sustained on examination of its history. 3 Thus, 
Judges appointed by Jefferson and Madison did not 
hesitate to join with Marshall in sustaining and devel- 
oping the strongly Nationalistic interpretation of the 
Constitution so obnoxious to Jefferson. Judges ap- 
pointed by Jackson joined with Marshall and Story 

1 Connecticut Courant, Feb. 9, 16, 1801, account of a dinner to Oliver Wolcott 
in Washington, Jan. 24, 1801. 

2 Paterson, J., in Fowler v. Lindsay (1799), 3 Dallas, 411: "No prejudice or 
passion, whether of a State or personal nature, should insinuate itself in the admin- 
istration of justice. ... It is the duty of Judges to declare, and not to make, the 
law." Moody, J., in Twining v. New Jersey (1908), 211 U. S. 106: "Under the 
guise of interpreting the Constitution, we must take care that we do not import 
into the discussion our personal views of what would be wise, just and fitting rules 
of government to be adopted by a free people, and confound them with constitu- 
tional limitations." "**** s %^ 

3 Brooks Adams in The Theory of Social Revolutions (1913), 47, says: "In fine, 
from the outset, the American bench, because it deals with the most fiercely con- 
tested of political issues, has been an instrument necessary to political success. 
Consequently, political parties have striven to control it, and therefore the bench 
has always had an avowed partisan bias." See in answer to this, Judicial Inter- 
pretation of Political Theory; A Study in the Relation of Courts to the American 
Party System (1914), by William B. Bizzell; Is Law the Expression of Class Self' 
ishness, by Francis M. Burdick, Harv. Law Rev. (1912), XXV; see also Politics 
and the Supreme Court, by Walter D. Coles, Amer. Law Rev. (1893), XXVII. 
Westel W. Willoughby, op. cit., 99, answering Von Hoist's charge in his Con- 
stitutional History of the United States that their views on slavery controlled the 
appointment of Judges prior to 1860, says: "That the judiciary committee (of 
the Senate) was, for some years, influenced in its action regarding nominations 
to the Supreme Court by the views of the nominees as to slavery is extremely prob- 
able. . . . That, however, the Justices acted in accordance with their conscien4 
tious interpretation of the Constitution, a study of the character of the Justices, 
of the history of the cases, and of the several decisions rendered must, I think, 
convince the impartial." 



22 THE SUPREME COURT 

in supporting the Cherokee Missionaries against Geor- 
gia, in flat opposition to Jackson. The whole Bench 
appointed by Jackson decided against his policy in 
relation to the Spanish land claims. Judges appointed 
by Jackson and Van Buren threw down the gaunt- 
let to the former by issuing a mandamus against his 
favorite Postmaster-General. In every case involv- 
ing slavery, anti-slavery Judges joined with pro- 
slavery Judges in rendering the decisions. The con- 
stitutionality of the obnoxious Fugitive Slave Law 
was unanimously upheld by anti-slavery Whig Judges 
and by pro-slavery Democrats alike. A Northern 
Democrat joined with a Northern Whig Judge in 
dissenting in the Dred Scott Case. President Lin- 
coln's Legal Tender policy was held unconstitutional 
by his own appointees. The Reconstruction policies 
and acts of the Republican Party were held unconsti- 
tutional by a Republican Bench. The constitutional 
views of the Democratic Party as to our insular pos- 
sessions were opposed by a Democratic Judge who 
joined with his Republican Associates in making up 
the majority in the Insular Cases. Multiple other 
illustrations might be cited. In fact, nothing is more 
striking in the history of the Court than the manner 
in which the hopes of those who expected a Judge 
to follow the political views of the President appoint- 
ing him have been disappointed. While at various 
periods of extraordinary partisan passion, charges 
of political motives have been leveled at the Court, 
it has been generally recognized, when the storms 
subsided, that the accusations were unwarranted. In 
fact, it is one of the safeguards of our form of govern- 
ment that the people recognize that the refusal by 
the Courts to make concessions to expediency or tem- 
porary outcry is required for the protection of the rights 



INTRODUCTORY CHAPTER 23 

of the citizen. "Considerate men of every descrip- 
tion ought to prize whatever will tend to beget or for- 
tify that temper in the Courts," said Alexander Ham- 
ilton, "as no man can be sure that he may not be 
tomorrow the victim of a spirit of injustice by which 
he may profit today." l 

Popular confidence in the strength and integrity of 
the Court has been further heightened by widespread 
knowledge of the fact that v at all times the Court has 
received the aid, the support and the criticism of a Bar 
of the highest ability comprising lawyers from every 
section of the country ; and the fact that, for the first 
seventy years, the Federal Bar was largely composed 
of Senators and Representatives served to keep the 
representatives of the people in intimate touch with 
the proceedings and decisions of the Court. "Upon 
the lawyer equally with the Judges rests the responsi- 
bility for an intelligent determination of causes in the 
Courts, whether relating to public or to private rights," 
said Judge Harlan at the Centennial of the Court. 
" It has been said of some judgments of the Supreme 
Court of the United States that they are not excelled 
by any ever delivered in the judicial tribunals of any 
country. Candor, however, requires the concession 
that their preparation was preceded by arguments 
at its Bar, of which may be said, what Mr. Justice 
Buller observed of certain judgments of Lord Mans- 
field, that they were of such transcendent power that 
those who heard them were lost in admiration 'at the 
strength and stretch of the human understanding." 

One further factor which has strengthened the 
Court in popular confidence and which has greatly 
served to lessen the chances of friction between the 
component parts of the Federal system of govern- 

1 The Federalist, No. 78. j 



24 THE SUPREME COURT 

ment has been the voluntary limitation upon the exer- 
cise of its own power which the Court has adopted as 
a rule of practice. This limitation which, as a recent 
Judge has said, "is more than a canon of interpreta- 
tion, it is a rule of conduct resting upon considerations 
of public policy", was first set forth by Judge Iredell 
in 1798, when he stated that, as the authority to de- 
clare a statute void "is of a delicate and awful nature, 
the Court will never resort to that authority, but in 
a clear and urgent case." x This rule, it is to be noted, 
was first applied only to State statutes, as a means of 
avoiding friction between the States and the Federal 
Government. "It is but a decent respect due to the 
wisdom, the integrity and the patriotism of the Legisla- 
tive body by which any law is passed, to presume in 
favor of its validity, until its violation of the Constitu- 
tion is proved beyond all reasonable doubt," said Judge 
Washington in 1827, and Judge Woodbury said in 
1848: "It is to be recollected that our Legislatures 
stand in a position demanding often the most favor- 
able construction for their motives in passing laws, 

1 Moody, J., in Employers 9 Liability Cases (1908), 207 U. S. 463, 509. James 
Iredell even before he became a Judge of the Court had written, as early as Aug. 
26, 1787, to Richard D. Spaight stating that: "In all doubtful cases to be sure, 
the Act ought to be supported. It should be unconstitutional beyond dispute 
before it is pronounced such." Iredell, J., in Colder v. Bull (1798), 3 Dallas, 386, 
399; Paterson, J., in Cooper v. Telfair (1800), 4 Dallas, 14, 19; Marshall, C. J., 
in Fletcher v. Peck (1810), 6 Cranch, 87, 128; and Dartmouth College v. Woodward 
(1819), 4 Wheat. 518, 625 ; Washington, J., in Ogden v. Saunders (1827), 12 Wheat. 
213, 270; Woodbury, J., in Planters Bank v. Sharp (1848), 6 How. 301. "Every 
possible presumption is in favor of the validity of a statute and this continues 
until the contrary is shown beyond a rational doubt." Strong, J., in Legal Tender 
Cases (1871), 12 Wall. 457, 521 ; Waite, C. J., in Sinking Fund Cases (1879), 99 
U. S. 700, 718. See also Peckham, J., in Nicol v. Ames (1899), 173 U. S. 509, 
515; Day, J., in El Paso, etc. Ry. v. Gutierez (1909), 215 U. S. 87, 96. Other 
Judges have used similar phrases to express the Court's rule of conduct. "As the 
State tribunals are presumed to do their duty, we should not disturb their decision, 
even on matters connected with the General Government, unless very manifestly 
improper or erroneous." Woodbury, J., in Doe v. Eslava (1850), 9 How. 421, 
444. The incompatibility "must be clear and strong." Harlan, J., in Interstate 
Commerce Commission v. Brimson (1894), 154 U. S. 447; Brewer, J., in Fairbank 
v. United States (1901), 181 U. S. 283, 285. 



INTRODUCTORY CHAPTER 25 

and they require a fair rather than hypercritical view 
of well-intended provisions in them. Those public 
bodies must be presumed to act from public considera- 
tions, being in a high public trust ; and when their 
measures relate to matters of general interest, and 
can be vindicated under express or justly implied 
powers, and more especially when they appear intended 
for improvements, made in the true spirit of the age, 
or for salutary reforms in abuses, the disposition in 
the Judiciary should be strong to uphold them." It 
was not until the year 1871 that this rule was applied 
in a case involving an Act of Congress, when in the 
Legal Tender Cases, Judge Strong stated that "a de- 
cent respect for a coordinate branch of the Govern- 
ment demands that the Judiciary should presume, 
until the contrary is clearly shown, that there has 
been no transgression of power by Congress — all the 
members of which act under the obligation of an oath 
of fidelity to the Constitution. Such has always been 
the rule." In 1878, Chief Justice Waite stated that 
"the safety of our institutions depends in no small 
degree on a strict observance of this salutary rule." 
Finally, the Court's retention of popular support has 
been strengthened by the scrupulous care with which 
it has refrained from assuming any authority to decide 
the policy or impolicy of legislation. "No instance is 
afforded from the foundation of the government," 
said Judge White in 1904, "where an act which was 
within a power conferred, was declared to be repugnant 
to the Constitution, because it appeared to the judicial 
mind that the particular exertion of constitutional 
power was either unwise or unjust. To announce such 
a principle would amount to declaring that, in our con- 
stitutional system, the Judiciary was not only charged 
with the duty of upholding the Constitution, but also 



26 THE SUPREME COURT 

with the responsibility of correcting every possible 
abuse arising from the exercise by the other depart- 
ments of their conceded authority. So to hold would 
be to overthrow the entire distinction between the 
Legislative, Judicial and Executive departments of the 
Government, upon which our system is founded, and 
would be a mere act of judicial usurpation. . . . The 
decisions of this Court from the beginning lend no sup- 
port whatever to the assumption that the Judiciary 
may restrain the exercise of lawful power on the as- 
sumption that a wrongful purpose or motive has caused 
the power to be exerted." "If it be said that a statute 
like the one before us is mischievous in its tendencies, 
the answer is that the responsibility therefor rests 
upon legislators, not upon the Courts," said Judge Har- 
lan. "No evils arising from such legislation could 
be more far-reaching than those that might come to 
our system of government, if the Judiciary, abandon- 
ing the sphere assigned to it by the fundamental law, 
should enter the domain of legislation, and, upon grounds 
merely of justice or reason or wisdom, annul statutes 
that had received the sanction of the people's repre- 
sentatives." * 

While, as thus outlined, the Court has won the gen- 
eral confidence of the people, it may fairly be admitted 
that criticism has not been entirely dissipated, and 
that temporary resentment over decisions running 
athwart the opinions of certain classes or sections of the 
country leads from time to time to demands for changes 
in the Judiciary system. It has been contended, and 
with a certain amount of reason, that the Court should 
impose a further voluntary limitation on its power, 
by announcing that it would decline to regard the 

1 McCray v. United States (1904), 195 U. S. 27, 54; Atkin v. Kansas (1903), 
191 U. S. 207, 223. 



INTRODUCTORY CHAPTER 27 

unconstitutionality of a statute as " plain", " clear", 
"palpable" or " unmistakable", in any case in which 
one or more Judges should consider the statute to be 
valid; the adoption of such a practice would render 
impossible most of the "five to four" decisions, which 
have been so productive of lessened popular respect. 1 
It has been suggested that the voluntary elimina- 
tion or restriction of the now increasing practice of 
filing dissenting opinions would also tend to strengthen 
public confidence ; on the other hand, such opinions 
are often of high value in the future development of 
the law and legislation. 2 More radical suggestions 
have been made for Constitutional Amendments estab- 
lishing an elective Court or a Court appointed for a 
term of years ; but such propositions have never yet 
found any substantial support, since it is manifest that 
they could only result in making the Judiciary less 
independent and more politically partisan. Changes 
have also been suggested in the direction of re- 
stricting the appellate jurisdiction of the Court; but 
such legislation would result in leaving final decision 
of vastly important National questions in the State or 
inferior Federal Courts, and would effect a disastrous 
lack of uniformity in the construction of the Consti- 
tution, so that fundamental rights might vary in differ- 

1 For an admirable discussion of this whole subject, see Constitutional Decisions 
by a Bare Majority of the Court, by Robert G. Cushman, Mich. Law Rev. (1921), 
XIX, citing the views of many modern jurists pro and con; see also Five to Four 
Decisions of the Supreme Court of the United States, by Fred A. Maynard, Amer. 
Law Rev. (1920), LIV, Dissenting Opinions, Green Bag (1902), XVII. 

2 See Dissenting Opinions of Mr. Justice Daniel, by Judge Henry B. Brown, 
Amer. Law Rev. (1887), XXI ; Dissenting Opinions of Mr. Justice Harlan, by Judge 
Henry B. Brown, ibid. (1912), XL VI ; Dissenting Opinions, by V. H. Roberts, 
ibid. (1905), XXXIX; Great Dissenting Opinions, by Hampton L. Carson, Albany 
Law Journ. (1894), L. See also, for statement of the value of dissenting 
opinions, Story, J. (diss.), in Briscoe v. Bank (1837), 11 Pet. 257; White, 
J. (diss.), in Pollock v. Farmers Loan and Trust Co. (1895), 157 U. S. 429; White, 
J. (diss.), in Henry v. A. B. Dick Co. (1912), 224 U. S. 1 ; Moody, J. (diss.), in Em- 
ployers" Liability Cases (1908), 207 U. S. 463. 



28 THE SUPREME COURT 

ent parts of the country. As was conclusively said 
fifty years ago, when the most serious efforts were made 
thus to weaken the Court : "If the Judges of the Union 
are silenced, those of the States will be left entirely 
uncontrolled. Remove the supervisory functions of 
the National Judiciary, and these laws will become the 
sport of local partisanship ; upheld in one common- 
wealth, they will be overthrown in another and all 
compulsive character will be lost. . . . To restrict 
their jurisdiction and weaken their moral power is, 
therefore, to sacrifice in a most unnecessary manner 
that department of the Government which more than 
any other will make National ideas triumphant, not 
only in the legislation of today but in the permanent 
convictions of the people." ' As to the proposition, 
formerly much advocated, to abolish the Court en- 
tirely and to place final power of judicial decision in 
the United States Senate, no trace of support can now 
be found. 

To the proposal, advanced at various times of in- 
tense party passion, that the Court should be increased 
in number in order to overcome a temporary majority for 
or against some particular piece of legislation, the good 
sense of the American people has always given a de- 
cided disapproval ; even mere partisan politicians see 
clearly that the employment of such an expedient is 
a weapon which may be equally used against them by 
their political opponents and may therefore prove dis- 
astrous in the long run ; and James Bryce has eloquently 
set forth the true foundation of the Court's security 
against such an effort to turn the course of justice : 
"What prevents such assaults on the fundamental law 
— assaults which, however immoral in substance, 
would be perfectly legal in form ? Not the mechan- 

1 Nation, Feb. 20, 1868. 



INTRODUCTORY CHAPTER 29 

ism of government, for all its checks have been evaded. 
Not the conscience of the Legislature and the Presi- 
dent, for heated combatants seldom shrink from justi- 
fying the means by the end. Nothing but the fear 
of the people, whose broad good sense and attachment 
to the great principles of the Constitution may gener- 
ally be relied on to condemn such a perversion of its 
forms. Yet if excitement has risen high over the coun- 
try, a majority of the people may acquiesce ; and then 
it matters little whether what is really a revolution 
be accomplished by openly violating or by merely 
distorting the forms of law. To the people we come 
sooner or later : it is upon their wisdom and self- 
restraint that the stability of the most cunningly de- 
vised scheme of government will in the last resort 
depend." l 

No institution of government can be devised which 
will be satisfactory at all times to all people. But it 
may truly be said that, in spite of necessary human im- 
perfections, the Court today fulfills its function in our 
National system better than any instrumentality which 
has ever been advocated as a substitute. Very ap- 
posite are the sentiments expressed by a lawyer in the 
anxious days of the Republic, just before the Dred 
Scott Case, as follows: "Admit that the Federal Judi- 
ciary may in its time have been guilty of errors, that 
it has occasionally sought to wield more power than 
was safe, that it is as fallible as every other human 
institution. Yet it has been and is a vast agency for 
good ; it has averted many a storm which threatened 
our peace, and has lent its powerful aid in uniting us 
together in the bonds of law and justice. Its very exist- 
ence has proved a beacon of safety. And now, when 
the black cloud is again on the horizon, when the trem- 

1 The American Commonwealth (1888), by James Bryce, I, 269. 



SO THE SUPREME COURT 

bling of the earth and the stillness of the air are pro- 
phetic to our fears, and we turn to it instinctively for 
protection, let us ask ourselves, with all its imagined 
faults, what is there that can replace it ? Strip it of its 
power, and what shall we get in exchange? Discord 
and confusion, statutes without obedience, Courts 
without authority, an anarchy of principles, and a 
chaos of decisions, till all law at last shall be extin- 
guished by an appeal to arms." ! 

1 Amer. Law Reg. (1856), IV, 129. See also American Government and Politics 
(1910), by Charles A. Beard, 314: "Some obvious lessons seem to come from a 
dispassionate review of the judicial conflicts which have occurred in our history 
Criticism of the Federal Judiciary is not foreign to political contests; no party 
when it finds its fundamental interests adversely affected by judicial decisions 
seems to hesitate to express derogatory opinions; the wisest of our statesmen 
have agreed on the impossibility of keeping out of politics decisions of the Su- 
preme Court which are political in their nature; finally, in spite of the attacks 
of its critics and the fears of its friends, the Supreme Court yet abides with us as 
the very strong tower defending the American political system." 



CHAPTER ONE 

THE FIRST COURT AND THE CIRCUITS 
1789-1792 

"It is perhaps not difficult to say which is the most 
arduous task, that of the Convention who framed the 
Constitution, or of the first Legislatures to whom it 
will appertain to mature and perfect so compound 
a system, to liquidate the meaning of all the parts, 
and adjust them to each other in a harmonious and 
consistent whole," said a Federalist pamphleteer in 
1792 ; 1 and these words quaintly and accurately por- 
trayed the task which was imposed upon the first Su- 
preme Court, as well as upon the first Congress. That 
President Washington had a full comprehension of the 
responsibility which lay upon him in making the ap- 
pointments to this first Court, and of the potent influ- 
ence which the Court was to exercise upon the history 
of the country, was shown by his letter to his future 
Attorney-General, Edmund Randolph. "Impressed 
with a conviction that the true administration of jus- 
tice is the firmest pillar of good government," he wrote, 
"I have considered the first arrangement of the judi- 
cial department as essential to the happiness of our 
country and the stability of its political system. Hence 
the selection of the fittest characters to expound the 
laws and dispense justice has been an invariable sub- 

1 An Enquiry as to the Constitutional Authority of the Supreme Federal Court over 
the Several States in Their Political Character (1792), by a citizen of South Carolina 
(David Ramsay). 



32 THE SUPREME COURT 

ject of my anxious concern." 1 Imbued with such be- 
lief in the high destiny of the tribunal, Washington 
had been considering possible candidates for appoint- 
ment upon the Court, for some months before the 
passage of the Judiciary Act ; and the tests which he 
intended to apply to all appointments he had nobly 
set forth in a letter to Chancellor Livingston of New 
York, in the preceding May. "When I accepted of 
the important trust committed to my charge by my 
country," he had written, "I plainly foresaw that the 
part of my duty which obliged me to nominate persons 
to office would, in many instances, be the most irk- 
some and unpleasing ; for, however desirous I might 
be of giving a proof of my friendship, and whatever 
might be his expectations, grounded upon the amity 
which had subsisted between us, I was fully determined 
to keep myself free from every engagement that could 
embarrass me in discharging this part of my adminis- 
tration. I have therefore declined giving any decisive 
answer to the numerous applications which have been 
made to me ; being resolved, whenever I am called upon 
to nominate persons for those offices which may be 
created, that I will do it with a sole view to the public 
good, and shall bring forward those who, upon every 
consideration and from the best information I can 
obtain, will in my judgment be most likely to answer 
that great end." And to Nathaniel Gorham, he had 
written: "The most delicate and in many instances 
the most unpleasing part of my administration will be 
the nomination to offices. . . . This consolation, how- 
ever, will never quit me, that the interest of the Ameri- 
can Union shall be the great object in view and that 
no means in my power shall be left untried to find out 
and bring forward such persons as have the best claims, 

1 Washington, X, letter of Sept. 27, 1789. 



THE FIRST COURT AND THE CIRCUITS 33 

upon every consideration are the most deserving and 
will be most likely to promote this important end." l 
On September 24, the day on which he affixed his 
signature to the Judiciary Act, Washington sent in 
to the Senate the names of his appointees to the Su- 
preme Court of the United States constituted by that 
statute. Of all appointments to be made, that of 
Chief Justice of the United States was by far the most 
important and had given to the President the greatest 
concern. Rightly he felt that the man to head this 
first Court must be not only a great lawyer, but a 
great statesman, a great executive and a great leader as 
well. Many eminent names were presented to him. 
Among the earliest and probably the most illustrious 
as a jurist was that of James Wilson of Philadelphia, 
who, on April 21, 1789, addressed himself to Washing- 
ton as an aspirant for the place in the following inter- 
esting letter : 2 

A delicacy arising from your situation and character as 
well as my own has hitherto prevented me from mention- 
ing to your Excellency a subject of much importance to me. 
Perhaps I should not even now have broke silence but for 
one consideration. A regard to the dignity of the Govern- 
ment over which you preside will naturally lead you to 
take care that its honours be in no event exposed to affected 
indifference or contempt. For this reason, you may well 
expect that, before you nominate any gentleman to an 
employment (especially one of high trust), you should have 

1 Washington Payers MSS, letters to Robert R. Livingston, May 31, 1789, and 
Nathaniel Gorham, May 7, 1789 ; see also Washington, X, letter to Edward Rut- 
ledge, May 5, 1789. To his nephew Bushrod Washington, who sought to be ap- 
pointed United States Attorney, Washington wrote, July 27, 1789: "My political 
conduct in nominations, even if I were uninfluenced by principle, must be exceed- 
ingly circumspect and proof against just criticism, for the eyes of Argus are upon 
me, and no slip will pass unnoticed that can be improved into a supposed parti- 
sanship for friends or relatives." 

2 This letter, hitherto unpublished, is in the Library of Congress ; see Calendar 
of Applications and Recommendations for Office under the Presidency of George Wash- 
ington (1901), by Gaillard Hunt. 

VOL. I — 2 



34 THE SUPREME COURT 

it in your power to preclude him, in case of disappoint- 
ment, from pretending that the nomination was made 
without his knowledge or consent. Under this view, I com- 
mit myself to your Excellency without reserve and inform 
you that my aim rises to the important office of Chief 
Justice of the United States. But how shall I proceed ? 
Shall I enumerate reasons in justification of my high pre- 
tensions? I have not yet employed my pen in my own 
praise. When I make those high pretensions and offer 
them to so good a judge, can I say that they are alto- 
gether without foundation ? Your Excellency must relieve 
me from this dilemma. You will think and act properly 
on the occasion, without my saying anything on either side 
of the question. 

Friends of John Rutledge of South Carolina were in- 
sistent that his seniority and distinction in professional 
studies and his services to his country entitled him to 
the position. The name of Robert R. Livingston, the 
distinguished Chancellor of New York, was warmly 
urged, and his judicial career, as well as his service in 
bringing about the ratification of the Constitution in 
New York, warranted his appointment; but Living- 
ston's aspirations fell afoul of the complicated situation 
in New York politics — that which John Adams in 
his old age used to term "the Devil's own incompre- 
hensibles." For six months, a bitter fight had been 
waging between the faction headed by the Living- 
stons and Governor George Clinton (an Anti-Federal- 
ist) and the ultra-Federalists headed by Alexander 
Hamilton and General Philip Schuyler, over the choice 
of United States Senators ; the two houses of the Legis- 
lature had split over the method of election and over 
the choice of Rufus King, who was favored by Hamil- 
ton ; as a result, New York had been left unrepre- 
sented in the first session of the First Senate ; this" sit- 
uation and Hamilton's antagonism rendered Living- 



THE FIRST COURT AND THE CIRCUITS 35 

ston's appointment impossible. 1 John Jay, one of the 
leading expounders of the Constitution, then acting 
as Secretary of Foreign Affairs, and a close personal 
friend of Washington's, was said to have been offered 
the choice of retaining his position in the Cabinet or 
taking the Chief Justiceship. 2 That Alexander Hamil- 
ton might be offered the position was evidently gravely 
feared by some ; for a citizen of Maryland wrote to 
Washington as to rumors "that the Chief will not be 
a native of America. . . . Nine tenths of the best 
friends to America will ever be averse to a foreign 
Judge", and he expressed the hope that Robert 
H. Harrison, the Chief Judge of Maryland, would be 
appointed — "the best man in the Union for the head 
of the Judiciary, best calculated to inspire confidence 
and love among our people . . . though from his re- 
tired habits not so well known throughout America 
as many men of high character who perhaps are not 
near so perfect . . . his virtues and character are not 
hidden from the impartial President of the United 
States." 3 

The President's decision finally fell upon John Jay 
of New York. "It is with singular pleasure that I 
address you as Chief Justice of the Supreme Court 
of the United States, for which office your commission 
is enclosed," wrote Washington. "In nominating you 

1 See Hamilton (Lodge's ed.), VIII, 208, note; History of Political Parties in 
the State of New York (1846), by Jabez W. Hammond, I, 30, 36; Columbian 
Centinel, Oct. 24, 1801 ; The Livingstons of Livingston Manor (1900), by Edward E. 
Livingston, 332. 

2 William Jay in his Life of John Jay (1873), II, 274, said: "The President's 
opinion of Mr. Jay's ability and disposition to serve his country induced him to 
ask his acceptance of any office he might prefer." Washington wrote to Madison, 
Aug. 9, 1789 : " I have had some conversation with Mr. Jay respecting his views 
to office which I will communicate to you at our first interview." Washington, X. 

S. A. Otis wrote to John Langdon in Sept., 1789 : "The Keeper of the Tower is 
waiting to see which salary is best, that of Lord Chief Justice or Secretary of State." 
Letters of Washington, Jefferson and Others to Langdon (1880), 92. 

^Washington Papers MSS, letter signed "Civis", Sept. 1, 1789. 



36 THE SUPREME COURT 

for the important station which you now fill, I not only 
acted in conformity to my best judgment, but I trust 
I did a grateful thing to the good citizens of these 
United States ; and I have a full confidence that the 
love which you bear to our country, and a desire to pro- 
mote the general happiness, will not suffer you to hesi- 
tate a moment to bring into action the talents, knowl- 
edge and integrity which are so necessary to be 
exercised at the head of that department which must 
be considered as the keystone of our political fabric." 1 
While Jay was only in his forty -fourth year, and while 
his practice as a lawyer had been of short duration and 
his only previous judicial service had been two years 
(from 1775 to 1777) as Chief Justice of New York, 
nevertheless, the distinction, the sagacity and the 
powers of leadership which had characterized his mili- 
tary, political and diplomatic career since 1774, marked 
him as preeminently qualified for the responsibilities 
of the high post to which he was now called. 2 

In the selection of the remaining five Judges, Wash- 
ington was confronted with an even more difficult prob- 
lem, since the three States of Virginia, Pennsylvania 
and South Carolina presented an unusual number of 

1 Washington, X, letter of Oct. 5, 1789. To this. Jay replied: "When dis- 
tinguished discernment and patriotism unite in selecting men for stations of trust 
and dignity, they derive honour not only from their offices, but from the hand 
which confers them. With a mind and a heart impressed with these reflections 
and their correspondent sensations, I assure you that the sentiments expressed 
in your letter of yesterday and implied by the commission it enclosed, will never 
cease to excite my best endeavours to fulfil the duties imposed by the latter, and as 
far as may be in my power, to realize the expectations which your nominations, 
especially to important places, must naturally create." Jay, III, letter of Oct. 6, 
1789. 

2 "A sound judgment improved by extensive reading, and great knowledge of 
public affairs, unyielding firmness and inflexible integrity were qualities of which 
Mr. Jay had given frequent and signal proofs," was the characterization which 
John Marshall later made of his friend and predecessor. Life of Washington 
(1807), by John Marshall, V, 215. Washington wrote to Lafayette, June 3, 1790, 
that his appointments of Jay at the head of the Judiciary and of Jefferson," Ham- 
ilton and Knox as Cabinet officials "generally have given perfect satisfaction 
to the public." 



THE FIRST COURT AND THE CIRCUITS 37 

qualified candidates. From Virginia, the names most 
prominently mentioned were Edmund Pendleton, 
George Wythe, Arthur Lee and John Blair. Of his 
perplexity in choosing, Washington wrote to James 
Madison : 1 "My solicitude for drawing the first char- 
acters of the Union into the Judiciary is such that my 
cogitations on the subject last night, after I parted with 
you have almost determined me, as well for the 
reason just mentioned, as to silence the clamors, or 
more properly soften the disappointment of smaller 
characters, to nominate Mr. Blair and Colonel Pendle- 
ton as Associate and District Judge, and Mr. Edmund 
Randolph for the Attorney General, trusting to 
their acceptance. Mr. Randolph I would prefer in 
this character to any person I am acquainted with 
of not superior abilities, from habits of intimacy 
with him. Mr. Pendleton could not, I fear, dis- 
charge, and in that case I am sure would not under- 
take, the duties of an Associate under the present 
form of the Act. But he may be able to fulfill 
those of the District. The salary, I believe, is greater 
than what he now has ; and he would see, or it 

1 Washington, X, letter of Aug. 10, 1789; Arthur Lee had applied for appoint- 
ment, May 31, 1789 (see letter in Library of Congress), as follows : "It is not with- 
out apprehension of presuming too much on the favor you have always shown me 
that I offer you my services as a Judge of the Supreme Court which is now estab- 
lishing. The having been called to the Bar in Westminster Hall after five years 
study at the Temple and having practised the law there for some time are the 
ground, Sir, on which I presume to ask your protection. I quitted the line of the 
law in England, where much was to be expected from the pursuit of it and with 
the fairest prospects, at the moment my country called upon me to aid in sup- 
porting her violated rights. With what fidelity I discharged the trust she re- 
posed in me, the records of the Office of Foreign Affairs will show. To return 
to the profession I had chosen, in a station not unbecoming those in which I 
have acted, is my most earnest desire. It would be an additional satisfaction to 
be distinguished by your appointment, Sir, and to assist in distributing equal jus- 
tice to a well-governed people." As to this letter Washington, writing to Madison 
in Aug., 1789, said: "What can I do with A(rthur) L(ee) ? He has applied to 
be nominated one of the Associate Judges; but I cannot bring my mind to 
adopt the request. The opinion entertained of him by those with whom I am most 
conversant is unpropitious ; yet few men have received more marks of public favor 
and confidence than he has. These contradictions are embarrassing." 



38 THE SUPREME COURT 

might be explained to him, the reason of his being 
preferred to the District Court rather than to the 
Supreme Court ; though I have no objection to nominat- 
ing him to the latter, if it is conceived that his 
health is competent, and his mental faculties are un- 
impaired by age." 1 John Blair, whom Washington 
finally selected, was a man of fifty-seven years of age, 
and had served ten years on the State Courts of Vir- 
ginia as Chief Justice of the Court of Appeals and as 
a Judge of the High Court of Chancery. 

From Massachusetts, it had been the general expec- 
tation that John Lowell, who had served as Judge of 
the Court of Appeals under the old Confederation, 
would receive the appointment; and he had been 
warmly indorsed by Washington's intimate personal 
friends. General Benjamin Lincoln had written: "I 
consider, my dear General, that not only the happi- 
ness of the people under the new government, but that 
the very existence of it depends, in a great measure, 

1 Edmund Randolph, writing to Madison as early as July 19, 1789, said that 
Col. Griffin "had written him July 1<», stating that he had had 'a long conversa- 
tion with our worthy President on the subject of officers of the Judiciary and the 
customs. He appears very anxious to know whether any of the gentlemen who are 
now in the Judiciary department in the State of Va., would prefer the Continental 
establishment and mentione; I Mr. Pendleton, Mr. Wythe, Mr. Lyons and Mr. Blair, 
and asked me whether you had ever intimated a wish to serve in that or any other 
line under the Federal government. May I ask the favor of you to sound Mr. 
W(ythe) and Mr. B(lair) <>u the subject. I have written to Mr. Marshall rela- 
tive to the wishes of Mr. P(endleton) and Mr. L(ee).* " Omitted Chapters of His- 
tory Disclosed in the Life and Papers of Edmund Randolph (1888), by Moncure D. 
Conway, 12(5. 

Similar views as to possible candidates had been expressed by Joseph Jones of 
Virginia to Madison as early as June 21, ITS!), Mass. Hist. Sor. Proe. 2d Series, XV: 
"Virginia ought to have one. ... Of our Judges, Pendleton, Wythe, Blair, 
would either of them answer well? The first will, I fear, be unable to execute 
his present office long ; the others arc qualified and able, if they would act. Among 
the lawyers, I know of none but Randolph. It is of the first consequence to have 
your Supreme Court of able lawyers and responsible characters"; see also letters 
of Washington to Joseph Jones, May 14, 1789, and to Edmund Randolph, Nov. 
30, 1789, explaining that the reason for not appointing George Wythe to the Fed- 
eral Judiciary was W r ythe's preference to remain a State Judge; and see report 
of Randolph to Washington, Dec. 15, 1789: "Wythe sits in a kind of legal mon- 
archy which to him is I he highesl possible gratification." 



THE FIRST COURT AND THE CIRCUITS 39 

upon the capacity and ability of those who may be 
employed in the Judiciary. . . . The common voice 
of the people here points out Mr. Lowell as a gentle- 
man well qualified to fill one of the seats upon the Su- 
perior Court. ... It is an office which, to fill with 
honour and dignity, requires an honest heart, a clear 
head and a perfect knowledge of law in its extensive 
relation." * When it became known that Washington 
was considering passing over Lowell and appointing 
William Cushing, the Chief Justice of the Massachu- 
setts Supreme Judicial Court, a strong and interest- 
ing protest was made by Christopher Gore in a letter 
to Rufus King of New York : 2 

The appointments to the Judicial seats will soon be 
made. We flatter ourselves in Massachusetts that one 
of the Supreme Court will be taken from this State. The 
general expectation is that our friend Lowell will be ap- 
pointed an Associate Judge ; and no doubt was ever enter- 
tained of this event till we heard that our Chief Justice 
was in nomination. Should the Chief Justice be appointed, 
we shall lose an excellent man whose talents are peculiarly 
fitted for the place he fills, without rendering any great 
service to the United States ; and a very good man will 
be extremely mortified. The Chief Justice, now 56 years 
of age, cannot long be an active member of the Court, and 
he has new habits and new modes of legal decision to acquire. 
On these grounds, I much doubt if he would be an acquisi- 
tion to the Union, or at least so great an acquisition 
to the Government as Lowell ; but in addition to all 

1 See letter of July 18, 1789, from Lincoln, also indorsement of Lowell by Elbridge 
Gerry, Calendar of Applications (1901), by Gaillard Hunt; Office Seeking during 
Washington s Administration, Amer. Hist. Rev. (1896), I, 270. Fisher Ames also 
favored the appointment of Lowell, letter of Aug. 12, 1789, Works of Fisher Ames 
(1854), I. 

2 King, I, letter of Aug. 6, 1789. Cushing's appointment was opposed by the 
strong Federalists in Massachusetts, who feared that his removal from the State 
Bench would give to Governor John Hancock, an Anti-Federalist, an opportunity 
to appoint the determined foe of all Federalists, James Sullivan; see letter of 
Stephen Higginson to John Adams, Amer. Hist. Ass. Rep. (1896), I, 767; William 
Cushing, by Arthur P. Rugg, Yale Law Journ. (1920), XXX. 



40 THE SUPREME COURT 

the consequences, which will be apparent in your mind, to 
taking him from our State bench Lowell's situation from 
such neglect of him will be intolerable. Having held a 
similar rank under the old Confederation, which commis- 
sion is superseded only by the adoption of the new Govern- 
ment, the neglect to appoint him to the Supreme Court 
will imply a conviction in the mind of him who appoints, 
that he had been tried and found wanting. This certainly 
will be disgraceful to a very good and able man. From a 
regard to the happiness and welfare of this State, and a 
wish that the expectations of a valuable part of the com- 
munity should not be disappointed, and that an honorable 
and good man should not be extremely mortified, I request 
your attention and influence in this appointment, and I 
am sure, if you see no just reason on National grounds 
for preferring Cushing to Lowell, you will endeavor that 
the latter shall not be disgraced. 

In spite of these arguments, Washington decided to 
appoint Cushing, who had served for nine years as 
Chief Justice in Massachusetts and was then fifty -seven 
years old — the oldest man chosen on the new Court. 

In Pennsylvania, the President's field of choice was 
wide, for eminent lawyers were numerous. Thomas 
McKean, who had been Chief Justice of that State for 
twelve years, was strongly urged by many and had 
early filed an application for appointment, writing 
that he had "an ambition to share in Your Excellency's 
Administration" and that he hoped it would not "be 
deemed indelicate in me to give a short account of my- 
self and my studies" : 1 

My character must be left to the World. I have lived 
in troublesome times in an unsettled and tumultuous 
government. A good Judge cannot be very popular, but 
I believe that my integrity has never been called in ques- 
tion; and it is certain that no judgment of the Supreme 
Court of Pennsylvania since the Revolution has been 

1 See letter of April 27, 1789, Calendar of Applications (1901), by Gaillard Hunt, 
in Library of Congress. 



THE FIRST COURT AND THE CIRCUITS 41 

reversed or altered in a single iota. A book of reports 
by Counsellor Dallas is now in the press here and will be 
abroad in about two months, from which some judgment 
may be formed in the other States of our decisions. I will 
only add that I am by habit and by inclination the man 
of business. Your Excellency will be pleased to excuse 
this particular self-detail when it shall be considered that, 
if you think fit to advance me to this station, my reputa- 
tion will become in a degree your interest, and my preten- 
sions should be known. . . . For this freedom, I must 
trust to your great goodness. It is (tho I am not three 
years younger than Your Excellency) my first essay of 
the kind. If you shall approve of this overture, I prom- 
ise you to execute the trust with assiduity and fidelity 
and according to the best of my abilities, the only return 
that I can make, and that, I know, you wish for. There is 
but one thing more I have to say and that is, if you make 
a single enemy or loose a single friend by gratifying my 
desire, I most sincerely beg you never spend a thought on 
the subject. 

It was fortunate for the successful working of the new 
Federal Government that McKean's wishes were not 
gratified ; for he soon became a radical State-Rights 
advocate and proclaimed from the State Bench that 
the Constitution was "a league or treaty made by the 
individual States as one party and all the States as 
another"; and that in case of a difference of opinion 
as to the construction of the Constitution " there was 
no provision in the Constitution that the Judges of the 
Supreme Court of the United States shall control and 
be conclusive." This was the doctrine upheld by Cal- 
houn in later years, but far removed from the consti- 
tutional views of Jay and Marshall. It is probable that 
Washington, however, decided against McKean more 
by reason of his defects of temper than of opinion. 1 

1 See opinion of McKean, C. J., in Respublica v. Cobbett (1798), 3 Dallas, 467. 
Owen Wister in The Supreme Court of Pennsylvania, Green Bag (1891), III, graph- 
ically portrayed McKean "with perpetually assailed and never tarnished honor; 



42 THE SUPREME COURT 

Moreover, it was unquestionably the fact that the best 
qualified lawyer in Pennsylvania, as well as the states- 
man most familiar with the proceedings of the Federal 
Convention, was James Wilson, a native of Scotland, 
forty-seven years of age, who had practiced at the 
Philadelphia Bar for eleven years, and w T ho had been 
an aspirant for the Chief Justiceship ; and Washington 
found no difficulty in deciding upon his appointment. 
From Maryland, Washington appointed his former 
military private secretary and close personal friend, 
Robert Hanson Harrison, a man of forty-four years, 
who had been Chief Judge of the General Court of 
Maryland for eight years. That he entertained a more 
personal interest in this nomination than in any other 
was shown by the fact that he addressed to Harrison 
(and to no other Judge except Rutledge) a personal 
letter, in the course of which he said: "Your friends 
and your fellow citizens, anxious for the respect of the 
Court to which you are appointed, will be happy to 
learn your acceptance, and no one among them will 
be more so than myself." ' Five days after his con- 
firmation, Harrison was chosen Chancellor of Mary- 
land, and preferring that post to the laborious position 
on the Federal Court decided to decline the latter, in 
spite of Washington's urgent request to the contrary, 
and notwithstanding an urgent letter from his old 
comrade-in-arms, Alexander Hamilton, who wrote : 2 

After having labored with you in the common cause of 
America during the late war, and having learned your value, 

riding roughshod over everyone who opposed him ; haughty and uncompromising ; 
hated by many, respected by most and feared by all ; invariably plainly prompted 
by his sincere and ferocious belief in himself." 

1 Washington Papers MSS, letterbook, letter of Sept. 28, 1789. 

2 Hamilton (Lodge's ed.), VIII, letter of Nov. 27, 1789; Washington, X, letter 
of Washington, Nov. 25, 1789, urging Harrison to accept, and saving thai con- 
templated changes in the Judiciary Act would allow him time to pay attention 
to his private affairs. 



THE FIRST COURT AND THE CIRCUITS 43 

judge of the pleasure I feel in the prospect of a reunion of 
efforts in this same cause ; for I consider this business of 
America's happiness as yet to be done. In proportion to 
that sentiment has been my disappointment at learning 
that you had declined a seat on the Bench of the United 
States. Cannot your determination, my dear friend, be 
reconsidered? One of your objections, I think, will be 
removed; I mean that which relates to the nature of the 
establishment. Many concur in opinion that its pres- 
ent form is inconvenient, if not impracticable. Should 
an alteration take place, your other objection will also be 
removed, for you can then be nearly as much at home as 
you are now. If it is possible, my dear Harrison, give 
yourself to us. We want men like you. They are rare 
at all times. 

In Harrison's place, Washington appointed James 
Iredell of North Carolina, who was commissioned 
February 10, 1790, and took his seat on the Bench at 
the second Term of the Court in August, 1790. IredeU_ 
was only thirty-eight years old and had been Attorney- 
General of his State. 

From South Carolina, the President hesitated be- 
tween the appointment of Charles Cotesworth Pinck- 
ney, John Rutledge and Edward Rutledge. William 
H. Drayton was also urged upon him. Finally his 
choice fell on Johnjiniledge, a man of fifty years of age, 
who had been a former Governor of the State and a 
Judge of the State Court of Chancery for the past six 
years. 1 Of the warmth of feeling which Washington 
had for his appointee, evidence was given in a personal 

1 South Carolina Federalist Correspondence, 1789-1797, Amer. Hist. Rev. (1906), 
XIV, letter of Ralph Izard to Edward Rutledge, Sept. 21, 1784. Izard continued 
as follows: "The President asked me before the nominations were made whether 
I thought your brother John, General Pinckney, or yourself would accept of a 
Judge in the Supreme Court. I told him that I was not authorized to say that 
you would not, but intimated that the office of Chief Justice would be most suit- 
able to either of you. That, however, was engaged. . . . The President will not 
appoint any but the most eminent ; and if none in South Carolina of that descrip- 
tion will accept, he will be obliged to have recourse to some other State." 



44 THE SUPREME COURT 

letter. 1 " Regarding the due administration of justice 
as the strongest cement of good government, I have 
considered the first organization of the Judicial De- 
partment as essential to the happiness of our citizens 
and to the stability of our political system. Under 
this impression, it has been an invariable object of 
anxious solicitude with me to select the fittest charac- 
ters to expound the laws and dispense justice. This 
sentiment, sir, has overruled in my mind the opinion 
of some of your friends, when they suggested that you 
might not accept an appointment on the Supreme 
Bench of the United States. The hesitation which 
those opinions produced was but momentary, when I 
reflected on the confidence which your former services 
had established in the public mind and when I exer- 
cised my own belief of your dispositions still further to 
sacrifice to the good of your country. In any event, 
I concluded that I should discharge the duty which 
I owe to the public by nominating to this important 
office a person whom I judged best qualified to execute 
its functions, and you will allow me to repeat the wish 
that I may have the pleasure to hear of your acceptance 
of the appointment." Because of the insistence of 
this letter, Rutledge consented to accept, although both 
he and his friends still retained the view that he ought 
to have been offered the Chief Justiceship. 2 

All of these six members of the new Court were men 
in the prime of life, the oldest being fifty-seven and the 
youngest thirty-eight ; all but two had previous judi- 
cial experience ; and of the general acceptability of 
these appointments, there was much evidence in 
contemporary letters. Ralph Izard of Charleston 
wrote to Edward Rutledge, stating that he had just 

1 Washington Papers MSS, letterbook, letter of Sept. 28, 1789. 

2 Washington Papers MSS, letter of Rutledge, June 12, 1795, infra, 127. 



THE FIRST COURT AND THE CIRCUITS 45 

returned from the Senate where the Judges "had been 
approved", and that they had been "chosen from 
among the most eminent and distinguished characters 
in America, and I do not believe that any Judiciary in 
the world is better filled." John Brown, a Congress- 
man from Kentucky, after reciting the nominations, 
wrote : "Our public affairs in every department go on 
so smoothly and with such propriety that I entertain 
sanguine hopes that the present Government will 
answer all the reasonable expectation of its friends. 
Judgment, impartiality and decision are conspicuous 
in every transaction of the President, and from the 
appointments which he has made there is every reason 
to expect that the departments will be conducted with 
justice and ability." l Moreover, with great wisdom, 
the President had deemed it advisable to call to the 
high function of interpreting the Constitution men 
who had been instrumental in making it ; for Rutledge, 
Wilson and Blair had been members of the Federal 
Convention of 1787, and signers of the Constitution; 
while Jay, Iredell, Wilson and Cushing had been 
leaders in their respective State Conventions in 
aiding ratification of the Constitution. 2 Of the high 
dignity and importance of the positions which these men 
were to fill, Washington's full comprehension was again 
shown in the formal official letter which he addressed to 
each. "I experience peculiar pleasure in giving you 
notice of your appointment to the office of an Associate 
Judge in the Supreme Court of the United States," 

1 Harry Innes Papers MSS, letter of Sept. 28, 1789. 

2 Later, Paterson and Ellsworth, who were members of the Federal Convention 
of 1787, were appointed on the Court. Economic Origins of Jefferson Democracy 
(1915), by Charles A. Beard, 102-105. Of the thirty-nine men who signed the 
Constitution, twenty-six found a place in the new Government, either by election 
or appointment, and of three members of the Federal Convention who favored but 
did not sign the Constitution, two were elected Senators and one was appointed 
Attorney-General . 



46 THE SUPREME COURT 

he wrote. "Considering the judicial system as the 
chief pillar upon which our National Government 
must rest, I have thought it my duty to nominate, 
for the high offices in that department, such men as I 
conceived would give dignity and lustre to our National 
character, and I flatter myself that the love which 
you bear to our country and a desire to promote the 
general happiness will lead you to a ready acceptance 
of the enclosed commission which is accompanied with 
such laws as have passed relative to your office." l 

On Monday, February 1, 1790, the day appointed 
for its organization, the Supreme Court of the United 
States met in New York, in the Royal Exchange, a 
building located at the foot of Broad Street. "The 
Court Room at the Exchange was uncommonly 
crowded," said the newspapers of the day. "The 
Chief Justice and other Judges of the Supreme Court 
of this Stale, the Federal Judge for the District of 
New York, I he Mayor and Recorder of New York, the 
Marshal of the District of New York, the Sheriff and 
many other officers, and a greal Dumber of the gentle- 
men of the Bar attended on the occasion." 2 Since, 
however, in spite of the importance of the event, only 
three of the Judges were present, Jay, Wilson and 
Cushing, the Court adjourned to the next day at one 

1 Washington. X, letters of Sept 80, ITS!). The nominations of the Judges were 
sent in to the Senate, Sept. tfl, and were co nfir med, Sept. M. 

2 Full accounts were published in tin' New York and Philadelphia papers and 

copied in papers throughout the country; A' u York DaUa Adoertieer, Feb. 8, lo, 
11, 1780; Pennsylvania Packet (Phil.), fleb. t 11, 16, 1700; Federal Qa*eUe (Phil.), 

Feb. 4, 6, 8, 10, 17!)<>, stating the Court tn«t M a1 the Assembly Chamber, New 
York"; New York Journal, Feb. 4, i7!>o, and Freeman* t Journal (Phil.), Feb. 

10, 1790, said "a very DUmerOUl and respectable auditory attended." 

It is a CUrioUS fact that the very first line in the official written minutes of the 
Court, kept by the Clerk, contained an error. It reads as follows : "In the Supreme 
Judicial Court of the United States." The word "Judicial" of course improperly 
appears in the official title of the < 'onrt. and n:is undoubtedly inserted by the Clerk 
(who was a Massachusetts man) because of the fact that in Massachusetts, the 
official title of its highest Court was the "Supreme Judicial Court." 



THE FIRST COURT AND THE CIRCUITS 47 

o'clock, the Judges attending a dinner given that 
evening by the President. On February 2, Judge 
Blair and Attorney-General Edmund Randolph, having 
arrived from Virginia, the Court was organized (as 
stated in the newspapers) "at the Hall of the Exchange, 
the Marshal of New York (Mr. Smith) attended, 
and Mr. McKesson officiated as clerk. The jury 
from the District Court attended ; some of the members 
of Congress and a number of respectable citizens also. 
As no business appeared to require immediate notice, 
the Court was adjourned." 1 The published record of 
the ceremony (with its quaint penalty of imprison- 
ment in case silence should be broken during the reading 
of the commissions) was as follows : 2 

Proclamation was made and the Court opened. Proc- 
lamation was made for silence, while the letters patent of 
the Justices present are openly read, upon pain of imprison- 
ment; whereupon letters patent under the Great Seal of 
the United States bearing test on the 26th day of Septem- 
ber last, appointing the said John Jay, Esq., Chief Justice; 
letters patent bearing test the 27th day of September last, 
appointing the said William Cushing, Esq., an Associate 
Justice; letters patent bearing test the 29th day of Sep- 
tember last, appointing the said James Wilson, Esq., an 
Associate Justice ; and letters patent bearing test the 30th 
day of September last, appointing the said John Blair, Esq., 
an Associate Justice of this Court, were openly read. 

Letters patent to Edmund Randolph of Virginia, Esq., 
bearing test the 26th day of September last aforesaid ap- 
pointing him Attorney General for the United States were 
openly read. 

1 See also Iredell, II, letter of Samuel Johnson to Iredell, Feb. 1, 1790. 

2 See also the more concise official minutes of the Court in 134 U. S. App. 
In the proceedings of this first session of the Court, no record is made of any 
oath being administered to the Judges. It is probable that each took the oath 
separately, for it is known that Wilson was sworn before the Mayor of Philadel- 
phia, Oct. 5, 1789; see History of the Supreme Court (1891), by Hampton L. Car- 
son, 148. 



48 THE SUPREME COURT 

Ordered that Richard Wenman be and he is hereby ap- 
pointed Crier of the Court. 

The Court adjourned until tomorrow at one o'clock in 
the afternoon. 

At this first session, the Judges were attired in robes, 
probably of black and red, since a contemporary 
Senator described them as "party-colored"; 1 and it is 
evident that considerable impression was made upon 
the public by this costume, for a Philadelphia news- 
paper, a little later, remarked upon the appearance of 
the Judges "in their robes of Justice, the elegance, 
gravity and neatness of which were the subject of 
remark and approbation with every spectator." 2 

On Wednesday, February 3, the Court met again, 
chose John Tucker of Massachusetts as its Clerk, and 
passed an order as to the form of the seal of the various 

1 William Allen Butler, as quoted in the account of the Centennial Celebration 
of the organization of the Federal Judiciary, in 134 U. S. Appendix, 712, stated 
that Jay wore "an ample robe of black silk with salmon colored facings", which 
according to family tradition was the gown of a Doctor of Laws of the University 
of Dublin which had conferred a degree upon Jay ; and Butler stated that " the 
Associate Justices wore the ordinary black robe which has since come into vogue 
as the vestment of all the members of the Court." This latter statement appears 
to be erroneous; for Senator Mason, speaking in the Senate in 1802 (7th Cong., 
1st Sess., June 13, 1802, G9), referred to: "A State upon her knees before six ven- 
erable Judges decorated in party-colored robes, as ours formerly were, or arrayed 
in more solemn black such as they have lately assumed." 

G. C. Hazelton, Jr., in History of the National Capitol (1897), 142, 154, quotes 
Benjamin Harrison (the elder) as saying that the question of the Court attire was 
a subject of discussion by public men of the day, and that "Jefferson was against 
any needless official apparel, but if the gown was to carry, he said : ' For Heaven's 
sake, discard the monstrous wig which makes the English Judges look like rats 
peeping through bunches of oakum!' Hamilton was for the English wig with 
the English gown. Burr was for the English gown but against the inverted wool 
sack termed a wig! The English gown was taken and the wig left." Henry 
Flanders in his Lives of the Chief Justices (1858), I, 37, speaks of the excitement 
caused by the appearance of Judge Cushing in his old-fashioned judicial wig on 
his arrival in New York, and that "returning to his lodgings, he sent for a peruke- 
maker and obtained a more fashionable covering for his head. He never again 
wore the professional wig." An English traveler, writing of Washington in 
1828, stated, on the other hand, that the Judges of the Supreme Court "com- 
menced with wigs and scarlet robes, but soon discarded them as inconvenient." 
Notions of the Americans (1850), by J. P. Cooper, II, 48. 

2 See New York Daily Advertiser, Feb. 21, 1792; Gazette of the United States, 
Feb. 11, 1792; Providence Gazette (R. I.), Feb. 25, 1792. 



THE FIRST COURT AND THE CIRCUITS 49 

Federal Courts. On Friday, February 5, the first 
practitioners before its Bar were admitted as coun- 
selors — Elisha Boudinot of New Jersey, Thomas Hartly 
of Pennsylvania, and Richard Harrison of New York, 
and Rules of Court were adopted as to the form of 
writs, and as to the admission of counselors and attor- 
neys. 1 On Monday, Tuesday, and Wednesday, Feb- 
ruary 8, 9, and 10, the only business transacted was the 
admission of sixteen further counselors and seven attor- 
neys. 2 Of these nineteen counselors admitted at this 
first Term, it is interesting to note that two were Sen- 
ators and nine were Representatives present in New 
York attending the First Congress ; of the remaining 
eight non-officials, six were lawyers from New York, and 
two from New Jersey. Three weeks later, on March 4, 
1790, Arthur Lee of Virginia, who had been unable to 
qualify under the rule and had been admitted by 
special order of the Court, "took the oaths before 
the Chief Justice of the United States, requisite to carry 
into execution the special order of the Supreme Court 
for admitting him as counselor." 3 Of this first 
Federal Bar, a contemporary paper said: "Every 
friend to America must be highly gratified when he 
peruses the long list of eminent and worthy characters 
who have come forward as practitioners at the Federal 

1 "Ordered that (until further orders) it shall be requisite to the admission of Attor- 
neys or Counsellors to practice in this Court, that they shall have been such for 
three years past in the Supreme Court of the State to which they respectively belong, 
and that their private and professional character shall appear to be fair." 

2 The counselors were Egbert Benson, John Lawrence, Morgan Lewis, Richard 
Varick of New York, and Robert Morris of Pennsylvania; Theodore Sedgwick, 
Fisher Ames and George Thacher of Massachusetts; William Smith of South 
Carolina; James Jackson of Georgia; Samuel Jones, Ezekiel Gilbert and Corne- 
lius J. Bogert of New York ; Abraham Ogden, Elisha Boudinot and William Pater- 
son of New Jersey. The attorneys were William Houston, Edward Livingston, 
Jacob Morton, Bartholomew de Hart, John Keep, Peter Masterton and William 
Willcocks, all of New York. 

3 New York Daily Advertiser, March 5, 1790 ; Gazette of the United States, March 
6, 1790; Virginia Herald (Fredericksburg), March 18, 1790. 



50 THE SUPREME COURT 

Bar, where the most important rights of Man must, in 
time, be discussed and determined upon, as well 
those of Nations, as of individuals. Happy country ! 
Whose Judges rendered independent — and selected for 
their wisdom and virtue — constitute so firm a barrier 
against tyranny and usurpation on the one hand, and 
fraud and licentiousness on the other." ' An interest- 
ing reminder, however, of the fact that the prominence 
of the legal profession in bringing about the adoption 
of the Constitution had aligned the Anti-Federalist 
Party in hostility to lawyers was seen in the criticism 
by its newspaper organs of the number of Members 
of Congress admitted to the Federal Bar. ^ It is alarm- 
ing to find so many Members of Congress sworn into 
the Federal Court at its first sitting in New York. The 
question then is whether it is proper that Congress 
should consist of so large a proportion of Members who 
are sworn attornies in the Federal Courts ; or whether 
it is prudent to trust men to enact laws who are prac- 
tising on them in another department. Let common 
sense answer. If Congress does consist of practising 
Attorneys, the laws enacted may, in a great measure, 
depend on the particular causes such individuals may 
have to manage in the Judiciary ; this being the case, 
the property of the people may in a few years become 
the sport of Law-Makers acting in the capacity of 
interested attorneys." 2 

The session having lasted ten days and no case 
being on its docket for argument, the Court adjourned 
finally on February 10, 1790, "to the time and place 
appointed by law" ; and in the evening of the same day, 

1 Gazette of the United States, March 6, 1790. 

2 Independent Chronicle, Sept. 23, 1790. "A writer in a Vermont paper observes 
that the candidates (for Congress) are generally lawyers and that they are not tit 
subjects of the people's choice. Make them, says he, Governors, Judges, Qen- 
erals and what you will, but never make them legislators." Columbian Cenlincl, 
Aug. 25, 1792. 



THE FIRST COURT AND THE CIRCUITS 51 

the Grand Jury of the District Court, "gave a very 
elegant entertainment to the Chief, Associate and 
District Judges, the Attorney-General, and the officers 
of the Supreme and District Courts at Fraunce's 
Tavern, in Courtlandt Street. The liberality dis- 
played on this occasion and the good order and harmony 
which presided gave particular satisfaction to the 
respectable guests." x Among the thirteen toasts drunk 
by the "respectable guests" were the following : "The 
National Judiciary" and 'The Constitution of our 
Country, may it prove the solid fabrick of liberty, 
prosperity and glory." That the novel experiment 
of a National Judiciary had awakened great interest 
throughout the country was significantly shown by 
the fact that the New York and the Philadelphia 
newspapers described the proceedings of this first 
session of the Court more fully than any other event 
connected with the new Government; and their 
accounts were reproduced in the leading papers of all 
the States. 2 

The second Term of the Court was held in New 
York on Monday, August 2, 1790, at the Exchange. 
The commission of James Iredell of North Carolina 
(who had been appointed Judge on the last day of the 
preceding Term, on the resignation of Robert H. 
Harrison of Maryland) was read, and he qualified. 
There being no cases ready, the Court adjourned until 
Tuesday, when after having admitted as counselors 
Richard Bassett and John Vining of Delaware it 
adjourned for the Term. 3 

1 Gazette of the United States, Feb. 10, 1790. 

2 See among many others, the following newspapers : Virginia Independent 
Chronicle (Richmond), Feb. 17, 1790; Virginia Herald (Fredericksburg), Feb. 18, 
25, 1790; Augusta Chronicle (Ga.), March 27, 1790; New Jersey Journal, Feb. 
16, 1790; Connecticut Journal, Feb. 10, 1790; Boston Gazette, Feb. 15, 1790; 
Independent Chronicle (Boston), Feb. 11, 1790; Salem Gazette, Feb. 16, 1790. 

3 Pennsylvania Gazette, Aug. 11, 1790. 



52 THE SUPREME COURT 

It is interesting to note that at the very outset of 
the new Government, Chief Justice Jay evinced that 
comprehension of the essential functions of the judicial 
power of the Court and of its duty never to express 
its judicial opinion except in a case litigated between 
parties in due judicial course, which is a fundamental 
principle of the American frame of government. The 
question was presented to him in November, 1790, 
by Alexander Hamilton, the Secretary of the Treasury, 
whether all the branches of the Government ought 
not to interfere and to assert their opposition to senti- 
ments, which had recently proceeded from the Virginia 
Legislature and which seemed to Hamilton destructive 
of the principles of the government under the Consti- 
tution. At this time, excitement ran high, both in 
the Congress and in the Nation, over the projected Fed- 
eral legislation for assumption of State debts and 
redemption of the public debt. The Virginia House of 
Representatives had passed Resolutions terming the 
latter bill as "dangerous to the rights and subversive of 
the interest of the people and demands the marked 
disapproval of the General Government ", and denounc- 
ing the former bill as "repugnant to the Constitution 
of the United States, as it goes to the exercise of a 
power not expressly granted to the General Govern- 
ment." "This is the first symptom/' wrote Hamilton, 
"of a spirit which must either be killed or it will kill 
the Constitution of the United States. I send the 
Resolutions to you that it may be considered what 
ought to be done. Ought not the collective weight of 
the different parts of the Government to be employed 
in exploding the principles they contain? This ques- 
tion arises out of sudden and undigested thought/' l 

1 Hamilton (Lodge's ed.), VIII, letter of Hamilton to Jay, Nov. 18, 17<)0; /of, 
III, 404, gives the last two words as "unfledged thought"; loiter of Jay to Hamil- 
ton, Nov. 28, 1790. 



THE FIRST COURT AND THE CIRCUITS 53 

Jay replied in cool and restrained language that he 
considered it inadvisable to take any action. "Having 
no apprehension of such measures, what was to be 
done appeared to me to be a question of some difficulty 
as well as importance ; to treat them as very important 
might render them more so than I think they are. . . . 
The assumption will do its own work ; it will justify 
itself and not want advocates. Every indecent inter- 
ference of State Assemblies will diminish their influence ; 
the National Government has only to do what is right, 
and, if possible, be silent. If compelled to speak, it 
should be in few words, strongly evinced of temper, 
dignity and self-respect." 

The next Term of the Court was held in Philadelphia 
in February, 1791, at the new City Hall which stood 
east of Independence Hall. 1 Again the docket pre- 
sented no cases for argument ; but the session was 
enlivened by a singular episode in connection with 
the large number of lawyers who presented themselves 
for admission to practice. The local Bar had apparently 
assumed that, since Judge Wilson himself was a Phil- 
adelphia lawyer and knew them all personally, no 
insistence would be made by the Court upon the 
production of certificates of character. To the sur- 
prise, mortification and anger of many of the learned 

1 In the Gazette of the United States, Feb. 4, 1792, it is said that the Court "will 
meet at the new Court-House in this city." Of these halls, an interesting contem- 
porary description was given by an English traveler. " The State House is appro- 
priated to the use of the legislative bodies of that State. Attached to this edifice 
are the Congress and the City Halls. In the former, the Congress of the United 
States meet to transact business. The room allotted to the representatives of 
the lower house is about sixty feet in length and fitted up in the plainest manner. 
At one end of it is a gallery, open to every person that chuses to enter it ; the stair- 
case leading to which runs directly from the public street. The Senate Chamber 
is in the story above this, and it is furnished and fitted up in a much superior style 
to that of the Lower House. In the city hall, the Courts of Justice are held, the 
Supreme Court of the United States, as well as that of the State of Pennsylvania 
and those of the city." Travels through the States of North America during the Years 
1795, 1796, and 1797 (1807), by Isaac Weld, Jr. 



54 THE SUPREME COURT 

counselors, Judge Wilson was unwilling to vouch for 
them ; and the Chief Justice stated that the Court 
had decided not to accept the voucher of one lawyer 
for another. The flurry which ensued was vividly 
depicted in a letter written at the time. 1 * The Su- 
preme Court of the United States opened on Monday, 
the 7th inst., in which Chief Justice Jay and Judges 
Cushing, Wilson, and Iredell sat. A number of 
the Gentlemen of the Bar of this City attended at 
their lodgings and escorted them to the State House. 
The Court opened but there was no business. The 
Gentlemen of the Bar applied for admission but a Rule 
of the Court stood in their way, which made it neces- 
sary, previously to their admission, that they had 
practiced in the Supreme Court of the State three 
years, and that they had good moral characters, and 
possessed good legal abilities. I obviated the first 
objection by my Certificate of their Admission in the 
Supreme Court. The Court took then as evidence 
of the latter qualities that Mr. Wilcocks was Re- 
corder of the City ; Mr. Bradford was Attorney 
General of the State ; Mr. Lewis was Attorney for the 
District ; Mr. Fisher was vouched for by Mr. (Justice) 
Wilson, with apparent reluctance as against his wishes 
to do it for anyone ; Mr. Sergeant proposed that as 
Mr. Fisher was admitted, he should vouch for the 
rest of the Bar, but the Chief Justice said that they had 
determined that one lawyer should not vouch for 
another. However, he remarked that Mr. Sergeant 
had been Attorney General, which was an evidence of 
his good character and legal ability, and therefore he 
was admitted. Mr. Ingersoll was then proposed, and 
Mr. Randolph stated to the Court that he had been 

1 See letter of Edward Burd to Jasper Yeates, Feb. 8, 1791, in Amer. Law Rev. 
(1900), XXXIV, 628, quoted in a letter from Francis Rawle. 



THE FIRST COURT AND THE CIRCUITS 55 



a Member of Congress and of the Federal Convention. 
Chief Justice Jay observed that he might be a very 
good Member of Congress and yet no lawyer. Mr. 
Ingersoll then formally withdrew his application for 
admission till another period. After a little while, 
Mr. Wilson said that it was from no difficulty about 
either that Gentleman's character or legal ability, 
for everybody knew that if he said anything about him, 
he must have said that he was one of the most eminent 
at the Bar. He was admitted without any renewal of 
his application, and Mr. Jay also paid him some 
compliments. So many difficulties occurring, the rest 
of the Bar declined bringing forward their applications, 
having expected that from Mr. Wilson's knowledge of 
them, everything might have been made easy. The 
Court then adjourned till one o'clock, when, the proper 
certificates having been provided, all who applied were 
admitted. The Bar thought they might have been 
treated with a little more delicacy by a Gentleman who 
knew them all intimately. However, I do not think 
that he meant any offence to them, but merely adopted 
the Rule of discriminating between the deserving and 
undeserving of the profession. It seems he might have 
acted with more fortitude if he had declared his good 
opinion of some and called for certificates only as 
to such whom he did not know particularly ; or if 
he had positively refused to declare his opinion respect- 
ing any of the profession without written evidence." 
Among those admitted at this time who were then, or 
afterwards became, eminent leaders of the Bar, were 
William Lewis, William Bradford, Jr., Alexander 
Wilcocks, Miers Fisher, Jonathan Dickinson Sergeant, 
Jared Ingersoll, Edward Tilghman, William Rawle, 
Alexander J. Dallas, Peter S. Duponceau, Benjamin 
Chew, Moses Levy, Thomas Learning, Jr., and Jasper 



Jfrc*~ 



56 THE SUPREME COURT 

Moylan, all of Pennsylvania; James Monroe of 
Virginia ; Samuel Johnston of North Carolina, and 
Luther Martin of Maryland. 1 

At the August Term in 1791, Samuel Bayard was 
appointed Clerk in place of Tucker, and five counsel- 
ors were qualified. 2 On the second day of the Term, 
the case of West v. Barnes, 2 Dallas, 401, was called 
for argument ; but "David L. Barnes of Massachusetts, 
one of the defendants in error and counselor of the 
Court (just admitted) rose and stated to the Court 
that the proceedings in the above cause could not be 
properly before the Court", the writ of error having 
issued from the office of the Clerk of the Circuit Court 
and not from the office of the Clerk of the Supreme 
Court. 3 The Court dismissed the case on this ground. 
Had the case been argued, it is probable that at that 
very early date the Court would have been called upon 
to consider the extent of its powers, relative to the 
constitutionality of State statutes ; for the legal tender 
paper money law of Rhode Island was involved in the 
case — the same law which the Judges of that State 
had held invalid in Trevett v. Weeden in 1787. 4 

Before the next Term, it became necessary for the 
President to fill a second vacancy ; for John Rutledge 
of South Carolina, who had never attended a session 
of the Court and had only served on Circuit, now 

1 Twenty-two counselors and one attorney were qualified from Pennsylvania; 
one counselor from Maryland ; one counselor and one attorney from Virginia ; 
one counselor from North Carolina. 

2 David Leonard Barnes of Massachusetts ; and Charles Swift, Thomas Smith, 
Jacob R. Howell, John D. Coxe of Pennsylvania. Freeman's Journal, Aug. 8, 
1791, said that the Court adjourned after "several motions respecting suits de- 
pending on the Court were made." 

3 See accounts of this case in the contemporary newspapers, Dunlajps Ameri- 
can Daily Advertiser, Aug. 13, 1791 ; Columbian Centinel, Aug. 13, 1791 ; Massa- 
chusetts Spy, Aug. 25, 1791, which are fuller than the account given in Dallas Re- 
ports. 

4 See case of David L. Barnes et al. v. William West et al., in original files of the 
Circuit Court in the United States District Court at Providence, R. I. 



THE FIRST COURT AND THE CIRCUITS 57 

resigned to accept the position of Chief Justice of his 
State. Although there was a distinguished Judge of 
the United States District Court in Georgia, Nathaniel 
Pendleton, who was an active candidate for the pro- 
motion to the Supreme Court and who was warmly 
indorsed by the veteran Edmund Pendleton of Virginia, 
a close personal friend of Washington, the President 
determined to make the appointment from South 
Carolina. * Accordingly, he adopted the singular expe- 
dient of addressing a letter jointly to Charles Cotesworth 
Pinckney and to Edward Rutledge (both of that State), 
asking if either of them would accept the position. 
Upon receipt of a reply from both stating that they 
thought that they could be of more service to the 
General Government and to their State by remaining 
in the State Legislature, Washington, on October 31, 
1791, appointed Thomas Johnson, a former Governor 
of Maryland, and then Judge of the United States 
District Court. As Johnson was fifty-nine years of 
age — the oldest man on this first Court — he only 
consented to accept, after assurances from Chief Justice 
Jay and from the President that the Circuit Court 
system requiring arduous labor and long traveling by 
the Judges would probably be altered by the next 
Congress. 2 

At the February Term in 1792, there was still no 
case ready for argument, and the Court adjourned, after 
hearing a motion in Oswald v. State of New York to 
compel an appearance on the part of the State. 

While it thus appears that during these first three 
years of its existence the Court had practically no 
business to transact, its Judges found themselves 

1 See letters of March 5, July 13, 1791 ; Calendar of Applications (1901), by Gail- 
lard Hunt. 

2 Washington, X, letters of May 24, Aug. 7, 1791. Johnson had been given 
a recess appointment, Aug. 5, 1791 ; he was confirmed by the Senate, Nov. 7. 



58 THE SUPREME COURT 

fully employed on the other arduous duties required of 
them under the Judiciary Act. By the provisions of 
that statute, the country had been divided into three 
Circuits (the Eastern, Middle, and Southern), to each 
of which two Supreme Court Judges were permanently 
assigned and directed to hold Court twice a year in 
each District, in company with the District Judges. 
The framers of the Act had expected this function of 
the Judges to be of great value in keeping the Federal 
Judiciary in touch with the local communities ; and 
at the very outset of the Court's organization, Wash- 
ington had written to the Chief Justice and to each 
of the Judges, expressing his views of the high impor- 
tance of the manner of the performance of their duties 
and saying that he had "always been persuaded that 
the stability and success of the National Government, 
and consequently the happiness of the people of the 
United States, would depend in a considerable degree 
on the interpretation and execution of its laws. In 
my opinion, therefore, it is important that the Judi- 
ciary system should not only be independent in its 
operations, but as perfect as possible in its formation. 
As you are about to commence your first Circuit, 
and many things may occur in such an unexplored 
field which it could be useful should be known, I 
think it proper to acquaint you, that it will be agreeable 
to me to receive such information and remarks on this 
subject, as you shall from time to time judge expedient 
to communicate." ! It was, in fact, almost entirely 
through their contact with the Judges sitting in these 
Circuit Courts that the people of the country became 
acquainted with this new institution, the Federal 
Judiciary ; and it was largely through the charges to 
the Grand Jury made by these Judges that the funda- 

1 Washington, X, letter of April 3, 1790. 



THE FIRST COURT AND THE CIRCUITS 59 

mental principles of the new Constitution and Govern- 
ment and the provisions of the Federal statutes and 
definition of the new Federal criminal legislation be- 
came known to the people. As was said by a contem- 
porary newspaper : "Among the more vigorous produc- 
tion of the American pen, may be enumerated the 
various charges delivered by the Judges of the United 
States at the opening of their respective Courts. In 
these useful addresses to the jury, we not only discern 
sound legal information conveyed in a style at once 
popular and condensed, but much political and consti- 
tutional knowledge. The Chief Justice of the United 
States has the high power of giving men much and 
most essential information in a style the very model 
of clearness and dignity." 1 No better exposition 

1 Farmer's Weekly Museum (Walpole, N. H.), June 17, 1799. 

The Circuit Court for the District of Connecticut was opened at New Haven, 
Thursday, April 23, 1790, by Jay, Gushing, and District Judge Richard Law : 
"His Honor the Chief Justice delivered an eloquent and pertinent charge. . . . 
The session continued until Saturday during which the several civil causes were 
heard and sundry rules and regulations adopted for future proceedings. The 
good sense and candor of the Judges has left an impression on the minds of the 
public, favorable to this new institution." Literary Diary of Ezra Stiles (1901), III ; 
Gazette of the United States, May 5, 1790. At the October session of the Circuit 
Court in Connecticut in 1790, the Chief Justice in his charge to the Grand Jury 
"made many pointed remarks on the nature of certain offences and the duty of 
the Grand Jury and delivered the whole with elegant simplicity and precision", 
Connecticut Courant, Oct. 25, 1790. 

The opening of the Circuit Court in Massachusetts was described in the Boston 
Gazette, May 10, 1790, as follows : "Monday last agreeably to law a Circuit Court 
of the United States for the Massachusetts District was held before Chief Justice 
Jay, Judge Cushing and Judge Lowell. After the usual forms were gone through 
and the Grand Jury impannelled, a charge was given them by the Chief Justice 
and the Throne of Grace addressed in Prayer by the Rev. Dr. Howard — the fol- 
lowing gentlemen were admitted Counsellors, etc. Tuesday, the Grand Jury 
came into Court and presented one indictment after which they were dismissed 
by the Chief Justice. The cause, Nebon v. De Baury, was discontinued by the 
plaintiff in order to bring it before the chancellate of the Consul, agreeably to the 
Convention agreed on between France and the United States and recently pro- 
mulgated. The criminal cause was continued to the next session on the plea of 
the defendant that very essential evidences were absent"; see also Columbian 
Centinel, May 5, 1790, and Independent Chronicle, May 27, 1790, giving the charge 
of Chief Justice Jay in full ; see " elegant charge " of Judge Iredell at Boston, Inde- 
pendent Chronicle, Oct. 28, 1791 ; charge of Chief Justice Jay in Massachusetts 
"replete with his usual perspicuity and elegance", Columbian Centinel, May 6, 



60 THE SUPREME COURT 

of the basic principles can be found than in the mem- 
orable charge of Chief Justice Jay at the first of these 
Circuit Courts, held in New York on April 4, 1790 : "It 
cannot be too strongly impressed on the minds of all 
how greatly our individual prosperity depends on our 
National prosperity, and how greatly our National 
prosperity depends on a well-organized, vigorous 
government, ruling by wise and equal laws, faithfully 
executed. Nor is such a government unfriendly to 
liberty — that liberty which is really estimable. On 
the contrary, nothing but a strong government of 
laws, irresistibly bearing down arbitrary power and 
licentiousness, can defend it against those two formi- 
dable enemies. Let it be remembered that civil liberty 
consists, not in a right to every man to do just what 
he pleases, but it consists in an equal right to all citizens 
to have, enjoy and do, in peace, security and without 
molestation, whatever the equal and constitutional 
laws of the country admit to be consistent with the 
public good." He pointed out that it was universally 
agreed that it was "of the last importance to a free 
people that they who are vested with Executive, 
Legislative and Judicial powers should rest satisfied 

1792. The first Circuit Court in Rhode Island after its admission to the Union 
was described in the Columbian Centinel, Dec. 22, 1790, and the Chief Justice's 
charge was termed "full of good sense and learning though expressed in the most 
plain and familiar style. ... At length have the mild beams of national Justice 
begun to irradiate the State and opened a dawn of hope for better times"; see 
also Jay's "excellent charge" in Rhode Island, Massachusetts Spy, Dec. 15, 1791; 
charge of Jay in Vermont, Columbian Centinel, July 28, 1792. On Sept. 27, 1792, 
at a Circuit Court in Connecticut held by Judges Wilson and Iredell, Wilson "ad- 
dressed an elegant and pertinent charge to the Grand Jury in which he expatiated 
with great force and beauty of language upon the excellence of the institution of 
juries", Connecticut Journal, Oct. 3, 1792; American Daily Advertiser, May 15, 
1792; charge of Judge Wilson at Providence, R. I., "replete with the purest prin- 
ciples of our equal government and highly indicative of his legal reputation", Provi- 
dence Gazette, April 25, 1793; see also charges of Judge Wilson in full at Philadel- 
phia, defining the Federal crimes, Pennsylvania Gazette, April 14, 1790 ; Columbian 
Centinel, May 1, 1790; Massachusetts Spy, Sept. 8, 1791; American Daily Adver- 
tiser, Feb. 5, 6, 9, 1793; charge of Chief Justice Ellsworth at Savannah, Ga., Con- 
necticut Journal, May 25, 1790. 



THE FIRST COURT AND THE CIRCUITS 61 

with their respective portions of power and neither 
encroach on the provinces of each other, nor suffer 
themselves nor the others to intermeddle with the 
rights reserved by the Constitution to the people. " 1 
His explanation of the necessity of a Federal Judiciary 
was particularly illuminating. "We had become a 
Nation. As such we were responsible to others for 
the observance of the Laws of Nations ; and as our 
National concerns were to be regulated by National 
laws, National tribunals became necessary for the 
interpretation and execution of them. No tribunals 
of the like kind and extent had heretofore existed in 
this country. From such, therefore, no light of experi- 
ence nor facilities of usage and habit were to be derived. 
Our jurisprudence varied in almost every State, and was 
accommodated to local, not general convenience, to 
partial, not National policy. This convenience and 
this policy were nevertheless to be regarded and 
tenderly treated. A judicial controul, general and 
final, was indispensable. The manner of establishing 
it with powers neither too extensive nor too limited 
rendering it properly independent and yet properly 
amenable involved questions of no little intricacy. 
The expedience of carrying justice, as it were, to every 
man's door was obvious ; but how to do it in an expe- 
dient manner was far from being apparent. To provide 
against discord between National and State jurisdiction, 
to render them auxiliary instead of hostile to each 
other, and so to connect both as to leave each suffi- 
ciently independent and yet sufficiently combined was 
and will be arduous. Institutions formed under such 
circumstances should therefore be received with can- 
dour and tried with temper and prudence." 

1 Columbian Centinel, May 29, 1790 ; this charge was repeated in all the Dis- 
tricts of the Eastern Circuit ; see also Jay, III, 387. 



08 THE SUPREME COURT 

For the first two years of the new Government, there 
was naturally little business to be transacted in any of 
the Circuit Courts, and the situation was described 
by the newspapers in 1791 as follows : "In the Judicial 
Department as much has been done as circumstances 
would admit. Judges of eminent virtue and learning 
preside in the Federal Courts. But the very narrow 
judicial power of the United States renders this one 
of the most difficult branches of legislation. Courts 
must be established and provision made to administer 
justice to men, almost at home, and yet the business 
is very inconsiderable. This is not the fault of Con- 
gress. If anything is to be regretted it is that a differ- 
ent arrangement had not been made of the judicial 
power of the Constitution." 1 The Judges, never- 
theless, made a very favorable impression upon the 
local communities in which they sat, and even in 
Rhode Island, which had beeD the last State to adopt 
the Constitution, it WBS said, in 1791, that "the Court 
in the conduct of the business and in their decisions 
gave great satisfaction. Their candour, impartiality 
and discernment were universally acknowledged and 
applauded. Justice itself seemed to preside on the 
Bench and inspire it. " ' 

But while the number of cases in the Circuit Courts 
was scanty, the subjects involved were of high impor- 
tance and presented legal questions of the most deli- 
cate nature with respect to the limitations on State 
sovereignty. Most of the opposition of the Anti- 
Federalists to the Constitution had been based on fears 
lest the proposed Federal Government should control 

1 See Providence Gazette, April £, 1791, quoting QiUUtU of the Vnited States. 

- Mat&aekutdU Spy, July 14, 1791. "The Chief Justice hath delighted the 

people of Mass. They regret that Boston was not the place of his nativity and 
his manner they consider so perfect as to believe that New ^ ork stole him from 
New England," wrote Gore to King, May 15, 1790. King, I. 



THE FIRST COURT AND THE CIRCUITS 63 

the States in respect to their stay laws, their legal 
tender laws, their legislation as to British debts and 
loyalist properties and their State land grants and 
land titles. 1 After the adoption of the Constitution, 
the probable encroachment of the Federal Courts and 
extension of their powers had been apprehended as a 
certain cause of friction between the Federal Govern- 
ment and the States ; and five days after the enactment 
of the Judiciary Act in 1789, William Grayson of 
Virginia had written to Patrick Henry that " whenever 
the Federal Judiciary comes into operation, I think 
the pride of the States will take alarm/' As early 
as 1791, Congress had debated a resolve for a Consti- 
tutional Amendment abolishing the whole system of 
Federal Courts as distinct from the Stale tribunals; 2 
and in December, 1791, Attorney-General Randolph 
had suggested to the President that the United States 
Attorneys should be required to present to the Attorney- 
General, a general statement of cases in which the 
"harmony of the two Judiciaries may be hazarded, 
and to communicate to him those topics on which the 
subjects of foreign nations may complain in the admin- 
istration of justice." 3 As an interesting example of 
the confusion attendant upon the initiation of the new 
judicial system, the Federal Circuit Court in North 
Carolina actually removed by certiorari a case which 
had been pending in a State Court prior to the adoption 
of the Constitution, an attempt which was clearly 
unwarranted. " The Supreme Judges of the State 

1 In the controversies between New York and Vermont over the admission of 
Vermont into the Union as a new and separate State, one of the chief obstacles 
was "the demand on the part of Vermont to be secured against certain claims for 
lands which it seems they are apprehensive would be wrested from them through 
the means of the Federal Courts." New York Daily Advertiser, Feb. 16, 1790; 
Massachusetts Spy, March 4, 1790 ; and see infra, ch. 2. 

2 Freeman s Journal, March 9, 16, 1791 ; Connecticut Courant, March 21, 1791 ; 
Providence Gazette, April 2, 1791. 

3 Amer. State Papers, Misc., I, No. 25, letter of Dec. 28, 1791. 



64 THE SUPREME COURT 

refused to obey, and the marshal did not execute his 
precept," wrote Fisher Ames, describing the episode. 
" The State Judges, knowing the angry state of the 
Assembly, wrote a letter of complaint representing 
the affair. Whether the United States Judges have 
kept within legal bounds is doubted. I should be 
sorry for an error of so serious a kind, and under such 
unlucky circumstances." ■ As early as 1792, many men 
in all parts of the country believed that State jealousies 
were certain to destroy the new Government. A 
Virginia correspondent wrote to Alexander Hamilton : 
"The operation of the Government has by no means 
been pleasing to the people of this country. On the 
contrary, the friends to it are daily decreasing. Some 
of the highest in rank and ability among us and who 
supported it in our convention arc now extremely 
dissatisfied and loud in abusing its measures ; while 
some others of equal fame only express their chagrin 
and disappointment in private." Theodore Sedgwick of 
Massachusetts wrote: "I tear the National Govern- 
ment has seen its best days. The distance at which 
it stands removed from the affections of the great 

l)iilk of the people; the opposition of SO many great, 

proud and jealous sovereignties; the undistinguished, 
perhaps indistinguishable, boundary between National 

1 Works of Vish I 1854), I. letter of Jan. <;. 1791, Reference to this episode 

was made by Nathaniel Macon «»f North Carolina in i speech in the House of Rep- 
resentatives in lso^: "We have heard much about the Judges and the neo 

of their independence . Soon after the establishment of the Federal Court, they 
issued a writ ... to the Supreme Court of North Carolina, directing :i ease then 
pending in the State Court to he brought into the Federal Court. The State 

Judges refused to obey the summons and laid the whole proceeding before the 
Legislature, who approved their conduct." 7th Cong H lit Saft., 711. 
John Sitgreavee wrote to Judge Iredell, Aug. 2, 1791: "With respect to the 

certiorari, Mr. Hamilton informed Judge Blair and myself that Mr. [Robert] 
Morris has desired him not to Urge it further; that as he was a Member of the 
Legislature of the United States, from motives of delicacy, he would rather the 
cause should be proceeded on in the State Courts. If this should he done. I 
suppose the Question, SO far as it relates to the authority of the Courts w ill be 

suffered to sleep." Iredell, II, :*.'W. 



THE FIRST COURT AND THE CIRCUITS 65 

and State jurisdictions ; the disposition which both may 
possess to encroach ; and above all, the rancorous 
jealousy that began with the infancy of the Govern- 
ment and grows with its growth, arising from an 
opposition, or supposed opposition of interests — 
produce in my mind serious doubts whether the 
machine will not soon have some of its wheels so 
disordered as to be incapable of regular progress." 1 
Such pessimism was soon seen to be unwarranted ; 
and the new Federal Judiciary soon obtained the 
confidence of the people. Nothing shows this clearer 
than the singular fact (hitherto unnoted by legal 
historians) that within two years from the beginning 
of the new Government, the United States Circuit 
Courts exercised, without any apparent contemporary 
criticism, that power of holding State statutes invalid, 
which later so frequently aroused State hostility. The 
first instance of this assertion of the supremacy of the 
Federal Government occurred as early as May, 1791. 
It presented, as the newspapers stated, "the great and 
much litigated question whether obligations in favor 
of real British subjects or those who had joined the 
armies of Great Britain during the war, should draw 

1 Hamilton Papers MSS, letter of William Heth of Richmond, June 28, 1792 ; 
Memoirs of Theophilus Parsons (1859), by Theophilus Parsons, letter of Jan. 16, 
1792. Hamilton wrote to John Adams, Aug. 16, 1792: "Your confirmation of 
the good disposition of New England is a source of satisfaction. I have a letter 
from a well informed friend in Virginia who says, all the persons I converse with 
acknowledge that the people are prosperous and happy, and yet more of them, 
including even the friends of the Government, appear to be alarmed at a supposed 
system of policy tending to subvert the Republican government of this country 
— were ever men more ingenious to torment themselves with phantoms?" 

The pessimism was not entirely due to political causes. Financial troubles were 
rife. John Brown, a Kentucky Representative, wrote from Philadelphia, 
April 20, 1792 : "Failures are daily taking place in this city and New York — the 
latter place in a state of distress and confusion beyond description ; confidence 
between man and man is totally lost, business suspected, and mobs and insurrec- 
tions hourly apprehended. . . . "Pis impossible to say when the calamity will 
stop or what the effects of it will be. Certain it is that nothing like it was ever 
seen before in this country." Harry Innes Papers MSS. 

VOL. I — 3 



66 THE SUPREME COURT 

interest during the time the creditors were inaccessible 
by reason of the war. In this case, the Court adjudged 
that the statute law of Connecticut enabling the State 
Courts to add interest in such cases was an infringe- 
ment of the treaty of peace, and that upon common 
principles interest was recoverable. The learned 
and ingenious arguments from the bench on this 
question were highly interesting and gave general 
satisfaction." ' Thus, less than two years after the 
adoption of the Constitution, and five years before the 
Court decided the point in the noted case of Ware v. 
Hylton, the Judges of the Court on Circuit exercised 
the function of declaring invalid a State law which 
infringed upon the provisions of a treaty. 

Only a year later, the Federal Judiciary again 
asserted the supremacy of the Federal Government by 
holding a State statute invalid as in conflict with the 
Federal Constitution, when in June, 1792, Chief 

1 Connecticut Courant, May!). 1791 J Ni Journal. May 11. 1791 J I 

dencr Cir.ette, May L4, 1791; NtU York . Journal, May 7. 1791 J I'rrc man's Jour- 
nal, May Hi, 1791 | Massachusetts S>/. May 12, 1791. 

The Connecticut Courant. May !>. 1791, r< ferred to the <!<•( ision as " much la- 

mented by those who frith to defraud then creditors", and to the State statute 

as having "received its death wound by the adoption of the new Constitution, 

and hath languished in extreme agony ever once. On Thursday, 'I"' 28th inat, 

the tWO-edged IWOrd of justice gAVe itfl leal fatal stroke and it expired without a 

groan. Numerous spectators beheld ita corpse without a smile and hoped that 

it might never rise again in thia world to our shanie or in the world to come to 

our confusion." 

A similar decision was given l>y Judge Iredell in 1791 a4 ;i circuit Court in Sa- 
vannah, (ia., in the case of Samuel Bradford v. .James Spalding, holding the Brit- 
ish Treaty "had the effect of an express repeal of thai part of the state ad which 

created an impediment to recovery of Mritidi debta >e<|ue>t rated " ; Cazette of the 
United States, May 16, 1704; Xnr York Daily Advertiser, May 17. 1792; VniicJ 
States Chronicle, May 31, 1792; a similar decision was made by Judge PatCHOn 
at a Circuit Court in South Carolina in 1798, in the case of Higginson v. (ireenieood ; 
The Diary or Louduns Register (X. Y.). June 7, 1793. See Amer. State Papert, 
For. Rel., I, letter of Jefferson to Hammond, May 9, 179-2, as to British debl 

Rufus King wrote to Gouverneur Morris, Sept. 1, 1792 ! "The National Judiciary, 
without having been much employed, has been the means of settling a large pro- 
portion of our foreign debts. From the Potomaok, East, nothing remains to be 
settled. In South Carolina, where immense sums were due, they are doing well 
and, in a few years, will be in a very prosperous condition. Virginia will be the last 
to do what her own interests required her long since to have performed." King, I. 



THE FIRST COURT AND THE CIRCUITS 67 

Justice Jay, Judge Cushing, and District Judge Henry 
Marchant, sitting in the Circuit Court for the Dis- 
trict of Rhode Island, held a law of that State to be 
unconstitutional as impairing the obligation of contract, 
in the case of Alexander Champion and Thomas Diclc- 
ason v. Silas Casey. 1 The statute involved was an 
Act of the Rhode Island General Assembly passed in 
February, 1791, in response to a petition of a debtor 
for an extension of three years' time in which to settle 
his accounts with his creditors and for an exemption 
from all arrests and attachments for such term of 
three years. The decision was as follows: "The 
Court also determined in the case of Champion and 
Dickason against Silas Casey that the Legislature of 
a State have no right to make a law to exempt an 
individual from arrests and his estate from attach- 
ments for his private debts, for any term of time, it 
being clearly a law impairing the obligation of con- 
tracts, and therefore contrary lo the Constitution of 
the United States." Another newspaper stated that: 
4 The defendant's counsel pleaded a resolution of the 
State in bar of the action, by which he was allowed 
three years to pay his debts and during which he was 
to be free from arrests on that account. The Judges 
were unanimously of opinion that, as by the Consti- 
tution of the United States, the individual States are 
prohibited from making laws which shall impair the 
obligation of contracts, and as the resolution in ques- 
tion, if operative, would impair the obligation of the 
contract in question, therefore it could not be admitted 
to bar the action." 2 Though this decision was given 

1 This case has hitherto escaped the notice of legal historians ; the original rec- 
ords are now on file in the United States District Court for the District of Rhode 
Island. 

2 For these reports of the decision, see Columbian Centinel, June 20, 1792; Provi- 
dence Gazette, June 16, 1792 ; United States Chronicle (Prov.), June 14, 1792 ; Salem 



68 THE SUPREME COURT 

great publicity in newspapers throughout the States, 
it seems to have aroused no opposition to the Federal 
Courts; and though, thirty years later, the right of 
these Courts to declare a State statute to be invalid 
was hotly attacked by many States, the exercise of 
this right in 1792 was accepted without protest by the 
very State which, five years before, had sought to 
impeach its State Judges for holding a State law 
invalid ; ■ and its acquiescence was expressed formally 
(as described by contemporary papers) as follows : 
" In conformity to a decision of the Circuit Court, 
the Lower House of Assembly voted on Wednesday 
that they would not grant to any individual an exemp- 
tion from arrests and attachments for his private debts, 
for any term of time."- Following this decision in 
Champion v. Dickason holding a Rhode Island State 
law unconstitutional, the Federal Circuit Courts pro- 
ceeded to exercise this judicial power iu a series of 
cases involving statutes of other Stales; in 1793, the 
validity of a Connecticut statute was involved in a ease; 3 

(iazttt, Man . June 26, 17<>*. New York DaU§ Admiieer, June *2, 179*; Con- 
necticut Journal, June *-i. L798, and many other newspapers. 

One month before this decision, tin- Federal Circuit Court sitting in Pennsyl- 
vania (Judges Wilson, Blair, and I)i>tri< t Judge Peten) had decided a case involv- 
ing the validity of a statute of that State; hut had held it not violative of the Fed- 
eral Constitution. See Collet v. Collet, * Dallas, if!) V: Cazette of the fluted Slates, 
May *. I798j \<>r York Dail;, Advertiser, May *. 1798. 

1 In 1787, when the Judges of the Suprem e Court of Rhode Inland held a legal 

tender paper money statute unconstitutional in Treretl v. Weedeit, the Uhod • Is- 
land Legislature attempted to impeadh the Judges; hut the requisite vote was 
not secured. Four years later, in 1701, after the adoption of the Federal Consti- 
tution, the Legislature actually Acquiesced in judicial action holding the legal ten- 
der statute invalid ; and (as slated in the newspapers 1 , g decision having heen given 

by a State Court "on the principle that by the adoption of the Constitution that 

act was virtually repealed, a petition was therefore pres en ted for the interposition 

of the Legislature; hut as the Souse of R e pre sen tatives refused to receive the 
petition, it must be inferred as the sense of the Legislature that the Ad was super- 
seded by the adoption of the Constitution and that it has thereby become null 
and void." Providence Gazette, July 9, 1791. 

2 Providence Gazette, June 23, 1792. 

3 Connecticut Courant, Oct. 7, 179.'*. "The cause, which involves the question 
whether a protection granted by the Legislature of the State . . . (which pro- 
tection was to continue no longer than during the session) was valid and sufficient 



THE FIRST COURT AND THE CIRCUITS 69 

in 1795, a statute of Pennsylvania was held invalid 
by Judge Paterson in VanHorne's Lessee v. Dorrance, 
2 Dallas, 304 ; ! in 1799, a statute of Vermont was held 
invalid as violating the impairment of obligation of 
contract clause of the Federal Constitution. 2 So far 
as can be ascertained from the comments in the press 
and from other contemporary documents, the action 
of the Federal Courts in these cases met with no 
opposition, and no claim was ever then advanced that 
their action was without constitutional authority. 3 

Even more notable, however, in the history of 
American law was the very early exercise of another 
form of judicial power by the Federal Circuit Courts, 
when, three years from their establishment, they 
rendered a decision for the first time holding an Act 
of Congress to be in violation of the Constitution. 

to protect his person from an attest by process or execution from the Courts of 
the United States, was fully debated upon demurrer, bul is continued. . . . This 
cause involves consequences of immense magnitude, and we trust will not be de- 
cided without full deliberation." This case has nol hitherto been noted. 

^his case has always been cited hitherto by legal historians (though erro- 
neously) as the first instance of B decision by a Federal Court on the validity of 
a State statute. Sec Aurora, May 15, 1795, New Yorl: Daily Advertiser, May 16, 
1795, Connecticut Journal, May 27, 1795, for interesting facts concerning the case; 
see also a pamphlet published in Lancaster, Pa., in 1801, by William Hamilton, 
entitled Connecticut Claim {Pickering Papers MSS, L, LVII). A writ of error 
was taken from this decision of the Circuit Court to the United States Supreme 
Court, but five years later, it was dismissed for failure to prosecute. 

2 This case, hitherto unnoted by legal historians, is described in Farmer s Weekly 
Museum, April 29, 1799, as one which "was lately brought to trial before the Cir- 
cuit Court of the United States at Rutland, Vermont, the Church Land Cause, 
brought by the selectmen of Manchester, by virtue of a statute of that State author- 
izing the selectmen of each town to take possession of all church lands, and to 
appropriate the avails to other purposes than originally intended. The Court, 
after a fair, impartial examination of the merits of the cause, adjudged the statutes 
to be unconstitutional and that the Church should hold their lands." 

3 The only criticism of any of the decisions was that voiced by certain Federal- 
ists against Judge Paterson (himself a Federalist) owing to his decision in Van 
Home v. Dorrance; it was based purely on political and personal grounds, and 
arose out of the fact that the decision had resulted in damage to large numbers of 
Connecticut Federalist settlers on lands in Pennsylvania; see Georgia Republi- 
can, Feb. 14, 1803. In Aurora, Sept. 20, 28, 1803, it is said that Judge Paterson's 
decision lost him the appointment as Chief Justice in 1801, owing to opposition 
by certain prominent Federalists. 



70 THE SUPREME COURT 

By the Act of March 23, 1792, it was provided that 
the Circuit Courts should pass upon certain claims 
of invalid pensioners, subject to revision by the Secre- 
tary of War and by Congress. When the first case 
under this Act arose in the Federal Circuit Court 
sitting in New York, April 5, 1792, Chief Justice Jay 
and Judge Cushing, after stating that, under the 
Constitution, the Government was divided into three 
"distinct and independent brandies, and that it is the 
duty of each to abstain from and to oppose encroach- 
ment on either, that neither the Legislative nor the 
Executive branch can constitutionally assign to the 
Judicial any duties but such as are properly judicial, 
and to be performed in a judicial manner", decided to 
construe the Act as appointing the Judges as Commis- 
sioners to perform non-judicial duties, with power 
to accept or decline the office; and, out of desire to 
show high respect for Congress, they professed willing- 
ness to act as such Commissioners. 1 These views the 
Judges communicated to Congress by means of a 
letter addressed to the President. April 10, 1792. 
Judge Iredell, sitting in the Southern Circuit, also 
wrote to President Washington that in his view the 
Act was unconstitutional, and he expresed as doubt 
;i> to whether he would he justified in acting even as ;i 
Commissioner. Judges Wilson and Blair, however, 

1 That the subject matter of the statute was such a^ to enlist popular sympathy, 

and therefore to bring poarible odium <>n the Judges for buling to act under the 

statute, may be Men from an editorial in the National fin-.tt/r, \pril It, 17!>^: 
"Our poor, starving invalids have ;it length some pn>\ iflioD made for them hv ( 'on- 
grew; and as the distresses of many of them arc urgent in the extreme, it is to he 
hoped that not a moment's delay will he made by the public offioeri WttO are di- 
rected to settle their accounts ; for although men who are accustomed to plentiful 
tables do not perhaps know it, it is nevertheless ;i melancholy truth that a few 
days fasting would kill not only a feeble, war-worn veteran, but even a hearty well- 
fed member of Congress or head of a department. If through unavoidable delay 
any of those unfortunate men should starve before their pittance ia paid, then it 
is to be hoped their widows and orphans will on the very first application receive 
it, that they may at least have something to purchase coffins for the deceased." 



THE FIRST COURT AND THE CIRCUITS 71 

sitting in the Circuit Court in Pennsylvania, met the 
question boldly, and (without filing any further 
written opinion) entered an order in the case of an 
invalid claimant named Hayburn that: "it is con- 
sidered by the Court that the same be not proceeded 
upon." * Following the decision, they addressed a 
letter to the President, setting forth "the sentiments 
which, on a late painful occasion, governed us with 
regard to an Act passed by the Legislature of the 
Union." They stated that "it is a principle important 
to freedom that, in government, the Judicial should 
be distinct from, and independent of, the Legislative 
department", and they held that the business directed 
by the Act was not of a judicial nature. " These, Sir, are 
the reasons of our conduct. Be assured that, though 
it became necessary, it was far from being pleasant. 
To be obliged to act contrary, either to the obvious 
direction of Congress, or to a constitutional principle, 
in our judgment equally obvious, excited feelings in us, 
which we hope never to experience again." 2 This action 
of the Federal Judges, holding for the first time an 
Act of Congress to be in conflict with the Constitution, at 
once became the subject of consideration in Congress. 
On a memorial presented by Hayburn, April 13, 1792, 
asking for relief, the following statement was made in 
the House of Representatives, setting forth more in 
detail the view of the Judges : 3 

1 See the First Hayburn Case, by Max Farrand, Amer. Hist. Rev. (1907), XIII. 
Judge Peters, who also sat in this case, wrote, June 23, 1818, to Charles J. Inger- 

soll relative to a later pension act: "Having been among the first Judges who 
resisted the danger of Executive control over the judgments of Courts when the 
first Invalid Law gave power to the Secretary of War to review such judgments, 

1 am confirmed in the opinions I then held by the circumstances now occurring ; 
tho' I do not now act as a Judge in a Court." Peters Papers MSS. 

2 For this letter of April 18, 1792, and that of Judge Iredell of June 8, 1792, see 

2 Dallas, 410, note; Amer. State Papers, Misc., No. 31. 

3 See report in American Daily Advertiser, April 16, 1792; see also 2d Cong., 1st 
Sess. t 556-557. 



72 THE SUPREME COURT 

It appeared that the Court thought the examination of 
invalids a very extraordinary duty to be imposed on the 
Judges — and looked on the law which imposed that duty 
as an unconstitutional one; inasmuch as it % directs the 
Secretary of War to state the mistakes of the Judge to 
Congress for their revision ; they could not, therefore, accede 
to a regulation tending to render the Judiciary subject to 
the Legislative and Executive powers, which, from a regard 
for liberty and the Constitution, ought to be kept carefully 
distinct, it being a primary principle of the utmost impor- 
tance that no decision of the Judiciary Department should 
under any pretext be brought in revision before either the 
Legislative or Executive Departments of the government, 
neither of which have, in any instance, a revisionary author- 
ity over the judicial proceedings of the Courts of Justice. 
. . . This being the first instance in which a Court of Jus- 
tice had declared a law of Congress to be unconstitutional, 
the novelty of the case produced a variety of opinions 
with respect to the measures to be taken on the occasion. 
At length a Committee of five were appointed to enquire 
into the facts contained in the Memorial and to report 
thereon. 

A singular suggestion made by one Congressman that 
a law be passed "to point out some regular mode in 
which the Judges shall uive official notice of their 
refusal to act under any law of Congress on the ground 
of unconstitutionality", would seem to have been a 
complete and early recognition in Congress that the 
Judges would continue to exercise this power. 

The decision evidently caused considerable excite- 
ment not only in Congress but in the community; 
and while, fifteen years later, it was the Anti-Federal- 
ists who assailed this form of exercise of judicial 
power, the curious fact should be noted that, at this 
time, the Federalists were apparently the opponents 
and the Anti-Federalists the upholders of the Judiciary. 
Thus, Freneau's National Gazette, a violent opponent 
of Federalism, applauded the decision of the Judges 



THE FIRST COURT AND THE CIRCUITS 73 

and expressed the hope that they might hold unconsti- 
tutional other Federal legislation : 

A correspondent remarks that the late decision of the 
Judges of the United States in the Circuit Court of Penn- 
sylvania, declaring an act of the present session of Con- 
gress, unconstitutional, must be matter of high gratifica- 
tion to every republican and friend of liberty ; since it 
assures the people of ample protection to their constitu- 
tional rights and privileges against any attempt of Legis- 
lative or Executive oppression. And whilst we view the 
exercise of this noble prerogative of the Judges in the hands 
of such able, wise and independent men as compose the 
present Judiciary of the United States, it affords a just 
hope that not only future encroachments will be prevented, 
but also that any existing law of Congress which may be 
supposed to trench upon the constitutional rights of indi- 
viduals or of States, will, at convenient seasons, undergo 
a revision ; particularly that for establishing a National 
Bank ; which being an incorporation and exclusive char- 
ter of privileges, violative, as it is conceived, of the independ- 
ent rights and sovereignty of the States, is deemed by 
many of the enlightened citizens of America to be repug- 
nant to the spirit, meaning and letter of the Constitution, 
and is regarded as a mere State engine of ministerial con- 
trivance, on the pretence to aid fiscal operations, but in 
reality, to introduce placemen, pensioners, corruption, 
venality and intrigue into Congress; of the happy effects 
of which let those who see, speak. 

The General Advertiser, owned in Philadelphia by 
Benjamin F. Bache and strongly hostile to the Federal 
Party, said : 

* Never was the word "impeachment" so hackneyed, as 
it has been since the spirited sentence passed by our Judges 
on an unconstitutional law. The high-fliers in and out of 
Congress, and the very humblest of their humble retainers, 
talk of nothing but impeachment ! impeachment ! im- 
peachment ! As if, forsooth, Congress were wrapped up in 
the cloak of the infallibility which has been torn from the 
shoulders of the Pope; and that it was damnable heresy 



74 THE SUPREME COURT 

and sacrilege to doubt the constitutional orthodoxy of any 
decision of theirs, once written on calf skin. But if a Sec- 
retary of War can suspend or reverse the decision of the 
Circuit Judges, why not a drill Sergeant or a black drummer 
reverse the decision of a jury? Why not abolish at once 
all our Courts except the Court-martial? and burn all our 
laws except the Articles of War ? . . . But when those im- 
peachment mongers are asked how any law is to be declared 
unconstitutional, they tell us that nothing less than a gen- 
eral convention is adequate to pass sentence on it — as 
if a general convention could be assembled with as much 
ease as a committee of stock jobbers. 

These articles were widely quoted, apparently with 
approval, by other Anti-Federalist papers. 1 An inter- 
esting letter signed "Camden" opposing the action of 
the Judges and commenting on their "extraordinary 
conduct" was published in some of the papers : 

If the word impeachment has been hackneyed out of 
Congress, it only indicates the sense of the public on the 
refusal of public servants to execute duties imposed on them 
by law; that the word has been hackneyed in Congress is 
not true; no individuals of that body, it is hoped, are so 
rash as to have committed themselves on so important a 
point without much deliberate reflection, and the House 
went no further than to direct an inquiry into the fact. 
Although Congress pretend not to infallibility, yet it is not 
impossible (perhaps even not improbable) that there may 
be in that body some members as capable of judging what 
is constitutional or not, as some of the members of the Cir- 
cuit Court ; that there are some as good lawyers, no one will 
doubt. But while the panegyrist of the Circuit Court 
refuses to ascribe infallibility to Congress, is he justified 
in clothing the Circuit Court with that quality? If the 
cloak of infallibility be torn from the shoulders of Con- 

1 National Gazette (Phil.), April 16, 19, 1792; Norwich Packet (Conn.), April 26, 
May 3, 1792; General Advertiser (Phil.), April 20, 21, 1792; Boston Gazette, April 30, 
1792; Salem Gazette, May 1, 1792; some Federalist papers also quoted the 
National Gazette article, see New York Daily Advertiser, April 21, 25, 1792; Mary- 
land Journal and Baltimore Advertiser, April 20, 1792. 



THE FIRST COURT AND THE CIRCUITS 75 

gress, would it not have been more discreet in the panegyrist 
to have reserved it for the shoulders of the Supreme Court, 
than to have hastily bestowed it on one Circuit Court ; as 
it cannot cover the shoulders of the three Circuit Courts, 
it may so happen that they may give different opinions, in 
which case the other Circuit Courts may justly complain 
of partiality. The Southern Circuit Court may execute 
the Law in its full extent without any squeamishness or 
difficulty ; the Eastern Circuit Court may execute the 
law, as commissioners ; while the Middle Circuit Court may 
refuse to execute it at any rate. ... In my next, I shall 
show that there is nothing in the Constitution to which 
the law in question is opposed and point out some of the 
serious and dangerous consequences which may result 
from a power in the Judges to refuse the performance of 
duties assigned to them by law. 

But to this "Camden" article, the National Gazette 
retorted that while humanity might be better pleased 
with the attitude towards the law adopted by the Judges 
of the Eastern Circuit, " they too have, tho' in a delicate 
manner, passed sentence of unconstitutionality on the 
invalid law" ; l and while "we do not mean to muffle up 
the Judges any more than Congress in the cloak of 
infallibility, we wish to see both parties amply clad, 
that is to say, with the garb of wisdom and righteous- 
ness." A month later, this Anti-Federalist paper, 
in noting "several circumstances highly interesting 
to the United States" which had marked the session of 
Congress just closed, said editorially: "The decision 
of the Judges against the constitutionality of an Act 
in which the Executive had concurred with the Legis- 
lative departments is the first instance in which that 
branch of the government has withstood the proceed- 

1 National Gazette, April 23, May 11, 1792; Boston Gazette, May 28, 1792; 
New York Daily Advertiser, May 14, 1792; Dunlaps American Daily Adver- 
tiser, May 11, 1792; a writer in Claypooles Daily Advertiser, April 16, 1792, 
expressed the hope that the Judges "may do the same with the national 
bank" statute, recently enacted by Congress. 



76 THE SUPREME COURT 

ings of the others ; and being another resource admitted 
by the Constitution for its own defense, and for security 
of the rights which it guarantees to the several States 
and to individual citizens, it may be contemplated 
under some very pleasing aspects, without under- 
taking to decide on the merits of the particular ques- 
tion. " That the action of the Judges was not regarded 
as subject to criticism by the Anti-Federalists was even 
more strongly shown by the fact that during the months 
of April and May, 1792, Chief Justice Jay was conduct- 
ing a hotly contested campaign for Governor, of the 
State of New York against George Clinton, and though 
attacks were made on Jay on many grounds, no Anti- 
Federalist opposed his judicial action, on this ground. 1 

On the other hand, leading Federalist newspapers, 
like Fenno's Gazette of the United States, took a non- 
committal position: 2 "The humane purposes of Con- 
gress in favor of the invalids are in some measure 
thwarted by the unconstitutional objections of the 
Judges. It might be arrogant to express a doubt 
whether the opinion they have expressed be sound." 
The general attitude of the Federalists seems to have 
been one of apprehension lest the exercise of power by 
the Federal Courts to declare Acts of Congress invalid 
might strengthen the States at the expense of the 
National Government ; and to this effect Fisher Ames 
wrote : " The decision of the Judges on the validity 
of our pension law, generally censured as indiscreet 
and erroneous. At best, our business is uphill and 
with the aid of our law Courts, the authority of Congress 
is barely adequate to keep the machine moving; 
but when they condemn the law as invalid, they 

1 Amongst other attacks, see New York Daily Advertiser, April 4, 1792, letter 
of " Aristides." 

2 Gazette of the United States (Phil.), May 9, 1792 ; New Jersey Journal, May 16, 
1792; Dunlaps American Daily Advertiser (Phil.), May 10, 1792. 



THE FIRST COURT AND THE CIRCUITS 77 

embolden the States and their Courts to make many 
claims of power, which, otherwise they would not have 
thought of." 1 Nevertheless, another equally strong 
Federalist, Edmund Randolph, the Attorney-General, 
took the opposite view, and in a letter to President 
Washington expressed the hope that the Judges 
would continue even firmer in denouncing infractions 
of the Constitution : 

It is much to be regretted that the Judiciary in spite of 
their apparent firmness in annulling the pension law are 
not, what sometime hence they will be, a resource against 
the infractions of the Constitution on the one hand, and 
a steady asserter of the Federal rights on the other. So 
crude is our Judiciary system, so jealous are State Judges 
of their authority, so ambiguous is the language of the 
Constitution that the most probable quarter from which an 
alarming discontent may proceed is the rivalship of these 
two orders of Judges. . . . Many severe experiments, the 
result of which upon the public mind cannot be foreseen, 
await the Judiciary ; States are brought into Courts as de- 
fendants to the claims of land companies and of individuals ; 
British debts rankle deep in the hearts of one part of the 
United States; and the precedent fixed by the condem- 
nation of the pension law, if not reduced to its precise prin- 
ciples, may justify every constable in thwarting our laws. 

In order to obtain a decision from the full Court, 
reducing its views to "precise principles", Randolph, 
acting officially as Attorney-General, filed a motion 
for a mandamus to the Circuit Court in Pennsylvania 
to command them to proceed on the petition of the 
invalid pensioner, Hay burn. The case was reported in 
Dallas Reports very briefly, but the contemporary 
newspapers give a far more complete account of 
this earliest of American constitutional cases, and 
describe it as follows : 2 

1 Works of Fisher Ames (1854), I, letter of April 25, 1792. 

2 General Advertiser (Phil.), Aug. 16, 1792; Gazette of the United States, Aug. 25, 
1792 ; United States Chronicle (Prov.), Aug. 30, 1792 ; Massachusetts Spy, Aug. 30, 1792. 



78 THE SUPREME COURT 

The first question that arose was independent of the 
main question, viz., whether it was part of the duty of the 
Attorney General of the United States to superintend the 
decisions of the inferior courts, and if to him they appeared 
improper to move the Supreme Court for a revision. After 
some prefatory remarks the Attorney General was asked 
from the bench whether he conceived it to be an official 
right to offer such a motion as he had intimated it to be. 
He answered that he did conceive it to be an official right. 
Upon which several observations were made and the debate 
continued from day to day until Saturday last. In favor 
of the Attorney General's exercising this power, the follow- 
ing are the heads of the principal arguments insisted on — 
the analogy between the nature of that office here and in 
England, — that part of the Judiciary Act which gives the 
Attorney General a superintendence over the concerns of 
the United States in the Courts of Justice which, giving 
latitude to the word concern brought the case within 
the power granted by the law, — and the Attorney Gen- 
eral being the only officer of the Supreme Executive to whom 
the Constitution gives a superintendence over the execu- 
tion of all the laws of the Union. Against this opinion, it 
was alleged that the analogy drawn was not sound, but 
rather dangerous; that the latitude given to the word con- 
cern would tend to give that officer a right officially to 
interfere in any law controversy between citizens, as the 
United States were concerned in seeing justice done in every 
case, — and that as the act of the Attorney General was 
not within his ordinary duty, it would require special 
authority from the Supreme Executive to establish its pro- 
priety. These were the principal heads of 1lu> argument 
used. The discussion was full and the Bench divided on 
the question. Judges Iredell, Johnson and Blair, declar- 
ing in favor of the Attorney General and Judges Wilson, 
Cushing and the Chief Justice entertaining the contrary 
opinion. This equal division was sufficient to reject the 
mode of proceeding Mr. Randolph first adopted, who then 
started on another ground, as counsel for a petitioner who 
had been unsuccessful in an application to the District 
Court of Pennsylvania. His motion, after being accom- 
panied with the reasons which induced him to believe the 



THE FIRST COURT AND THE CIRCUITS 79 

inferior Courts had erred, was postponed for a final deci- 
sion until the next Term. 

And Randolph, writing to Madison, gave the following 
account, incidentally expressing his not very complimen- 
tary views of the Chief Justice : * " After I had finished 
my exordium which was strong and pointed, and after 
it was foreseen that I should speak with freedom, Mr. 
Jay asked me if I held myself officially authorized to 
move for a mandamus. I assigned reasons in the 
affirmative and refused to make the motion until the 
official question was decided. It continued from day 
to day until yesterday, when Johnson, Iredell, and 
Blair were in favor of my power, and the other three 
against it. The motion was therefore necessarily 
waived for the present in an official form. But being 
resolved that the Court should hear what I thought 
the truth, I offered it, as counsel for the invalids. . . . 
An opinion which has long been entertained by others 
is riveted in my breast concerning the C. J. He has 
a nervous and imposing elocution, and striking linea- 
ments of face, well adapted to his real character. He 
is clear, too, in the expression of his ideas, but that they 
do not abound on legal subjects has been proved to 
my conviction. In two judgments which he gave last 
week, one of which was written, there was no method, 
no legal principle, no system of reasoning ! " Hayburn's 
case was never decided by the Court ; for Congress 
intervened by changing the statute involved. Mean- 
while, the Judges, though adhering to their decision 
on Circuit not to act in their judicial capacity under 
the law, decided (all, except Wilson) to construe the 
statute as authorizing them to act unofficially as 

1 Omitted Chapters of History Disclosed in the Life and Papers of Edmund Ran- 
dolph (1888), by Moncure D. Conway, 145, letter of Aug. 12, 1792. 



80 THE SUPREME COURT 

Commissioners. 1 To test the validity of the action 
of the Judges as Commissioners, Congress, by Act 
of February 28, 1793, after repealing parts of the 
earlier questionable statute, made an express provision 
for the institution of a suit by the Attorney-General ; 
and in compliance with this Legislative direction, the 
Attorney-General moved the Supreme Court for a 
mandamus against the Secretary of War to require 
him to put on "the pension list one of those who had 
been approved by the Judges acting in the character of 
Commissioners." The result of this motion he de- 
scribed in a letter to the Secretary : " Two of the Judges 
having expressed their disinclination to hear a motion 
in behalf of a man who had not employed me for that 
purpose, and I being unwilling to embarass a great 
question with little intrusions, it seems best to waive 
the motion until some of the invalids themselves should 
speak to counsel. To this end, I beg leave to suggest 

1 Cushing wrote to Jay, Oct. 3, 1792, from New Jersey: "There being no 
determination upon the subject in that district before ... we acted as Commis- 
sioners and sent our certificates accordingly (without making any entry on the 
book about it) to the Supreme Secretary of War." As to this action, the Neiv Jer- 
sey Journal (Elizabethtown, N. J.) said, June 6, 1792: "Who ever has attended 
the Circuit Court of the United States, the present term, must have been affected 
at the many objects who presented themselves as candidates for pensions. To 
see the lame and emaciated, war-worn soldier, the decrepit and almost naked sea- 
man — the best years of whose life had been spent in the service of his country, 
humbly supplicating the scanty morsel to save him from perishing was a sight 
which affected every benevolent and generous heart present. . . . But the atten- 
tion of the Hon. Judges was commensurate with the necessities of the wretches 
who applied." In Connecticut, Judges Iredell and Law decided to act as Commis- 
sioners in a case of John Chandler. " We have had a great deal of business to do 
here, particularly as I have reconciled myself to the propriety of doing invalid 
business out of Court. Judge Wilson altogether declines it," wrote Judge Iredell, 
Sept. 30, 1792. This decision of the Judges was commended by the Connecticut 
Courant, Oct. 7, 1792; Connecticut Journal, Oct. 3, 1792, Norwich Packet, Oct. 11, 
1792, as follows: "We are equally happy in mentioning to the public that two of 
the Judges have, notwithstanding some objections, consented to act as Commis- 
sioners in executing the Pension Law. Their candor and indulgence in proceed- 
ing to the laborious task of examining the claims of the numerous applicants for 
pensions ; a task which, in their opinion, their duty does not require them to under- 
take, do great honor to their humanity and compassion. It is hoped and pre- 
sumed that the crippled soldier, the war-torn veteran will now obtain that justice 
which he long ago ought to have obtained from his unfeeling countrymen." 



THE FIRST COURT AND THE CIRCUITS 81 

the propriety of a letter from your office to such of the 
invalids as have been certified to be proper for pensions, 
and perhaps it may be well to intimate the turn which 
the affair has taken and I have just mentioned. It 
was very unlucky that, although one of the invalids 
was in Court when I made the motion, and heard the 
difficulty, he omitted to notify himself to me until 
the Court had risen and it was too late." * 

The Attorney-General's action producing no results, 
a petition for mandamus against the Secretary of War 
was brought by a petitioner, John Chandler, which 
was heard on February 5 and decided February 14, 1794, 
in which the Court ruled: "Having considered the 
two Acts of Congress relating to the same, we are of 
opinion that a mandamus cannot issue to the Secretary 
of War for the purpose expressed in said motion." 
Three days later, another suit brought by the United 
States against a pensioner, Yale Todd, was decided 
in which the Court held in substance that the decisions 
of the Judges acting as Commissioners were without 
legal force. In both of these cases, the Court appears 
to have found it unnecessary to pass upon the consti- 
tutionality of the Act of 1792, for it held that the con- 
struction and theory of the Act adopted by the Judges, 
that it gave them authority to act as Commissioners, 
and not as Judges of the Court was untenable. 2 The 

1 Amer. State Papers, Misc., I, No. 47 ; letter of Aug. 4, 1793 ; see The Case 
of John Chandler, by Gordon E. Sherman, Yale Law Rev. (1905), XIV; 7th Cong., 
1st Sess., 742, 772, 780, 903, 904 ; United States v. Yale Todd, reported in 13 How. 
52, note. The Act of Congress referred to was Section 3 of the Act of February 
28, 1793 (1 Stat. 325) : "It shall be the duty of the Secretary of War, in conjunc- 
tion with the Attorney General, to take such measures as may be necessary to 
obtain an adjudication of the Supreme Court of the United States on the validity 
of any such rights claimed under the acts aforesaid, by the determination of cer- 
tain persons styling themselves commissioners." Neither the Chandler nor the 
Todd cases were reported in Dallas Reports. 

2 See letter of Attorney-General Bradford to the Secretary of War, Feb. 17, 
1794, announcing the result as follows: "That Court has this day determined 
(in the case of Todd) that such adjudications are not valid " ; and letter of Secre- 



82 THE SUPREME COURT 

great question, therefore, of the power of the Judici- 
ary with respect to the validity of Federal statutes 
was postponed for consideration until a later date. 
As pointed out above, however, the striking fact about 
the episode is that this first refusal by Supreme Court 
Judges on Circuit to acknowledge the validity of an 
Act of Congress seems to have been heartily supported 
by the adherents of the political party which favored 
a strict construction of the Constitution and to have 
been opposed by the party which was devoted to Na- 
tionalist theories. A review of the contemporary 
writings and journals from 1789 to 1802 clearly demon- 
strates that it was frequently the Anti-Federalists who 
supported the right of the Court to pass upon the con- 
stitutional validity of legislation, because they felt 
that it was the great guarantee of protection to State and 
individual rights against Congressional invasion, and 
that only in this manner would the power of the Federal 
Government be curbed ; 1 they welcomed the Court as a 
needed check upon Congress ; and it was in the writings 
of two strong Federalists, Zephaniah Swift of Connecti- 
cut and Richard Dobbs Spaight of North Carolina, 

tary of War Knox to the Senate and House, Feb. 21, 1794, reporting that "such 
adjudication has been recently obtained and that the determinations of the com- 
missioners were held to convey no legal rights to the invalids claiming under them." 
Amer. State Papers, Misc., I, 47. 

Several legal writers have stated that the Court held the statute unconstitu- 
tional; but as pointed out by James B. Thayer in his Constitutional Cases, I, 105, 
note : "It is inaccurate to say that this case holds the Act of 1792 to be unconsti- 
tutional as appears to be said in the note in 13 How. 52, and as is expressly said 
in the Reporter's Note in 131 U. S. App." Farrand also says that "probably the 
Court did not formally declare the Act unconstitutional. ... It is altogether 
probable that the Court evaded the issue." See contra, however, Shiras, J., in 
Re Sanborn (1893), 148 U. S. 222. 

1 That strong Anti-Federalist, Governor John Hancock, in his address to the 
Massachusetts Legislature, June 3, 1790, said: "Our persons and possessions are 
governed by standing and known laws and secured by a Constitution formed by 
ourselves. This Constitution is a law to the legislative authority itself, and lest 
the pride of office or the hand of lawless power should rob the people of their 
constitutional security, a proper balance is provided in the Judicial Department" ; 
see Gazette of the United States, June 9, 1790. 



THE FIRST COURT AND THE CIRCUITS 83 

that the chief attack was made on this form of judicial 
power. 1 

Whatever may have been the attitude of the Anti- 
Federalist and of the Southern statesman at a later 
date, it is clear that at the outset they fully recognized 
and indorsed the exercise of judicial review. This was 
very strongly shown during a debate which had oc- 
curred in June, 1789, in the First Congress, when a bill 
was proposed making the Secretary of Foreign Affairs 
removable by the President. Objection being raised 
to the constitutionality of this measure, it was emphati- 
cally contended by the Congressmen from the South- 
ern States and by the Anti-Federalists that Congress 
ought not to legislate, since the question of the Presi- 
dent's power to remove was one which must be settled 
by the Judiciary. 2 Abraham Baldwin of Georgia said : 
"It is their province to decide upon our laws and if 
they find them to be unconstitutional, they will not 
hesitate to declare it so." John Page of Virginia said 
that the Constitution ought to be left " to the proper 
expositors of it" — the Judges. William Smith of 
South Carolina stated that the question of the Presi- 
dent's right of removal should be "left to the decision 
of the Judiciary", who on a mandamus "would deter- 
mine whether the President exercised a constitutional 
authority or not." This statement was very signifi- 
cant, in view of the fact that Jefferson, fourteen years 

1 See A System of the Laws of the State of Connecticut (1795), by Zephaniah Swift, 
I, 51-53 ; Iredell, II, letter of Spaight, Aug. 12, 1787 ; see also infra, 257. It 
is interesting to note that the Anti-Federalists were equally pleased when, in 
1792, President Washington curbed the power of Congress by vetoing a statute 
apportioning Congressmen, on the ground that it was unconstitutional. "This 
Act of decision, firmness and independence," wrote James Monroe to John Breck- 
enridge, "has presented a ray of hope to the desponding, in and out of the republi- 
can party. He inspires men with a confidence that the government contains 
within itself a resource capable of resisting every encroachment on the publick 
rights." Breckenridge Papers MSS, letter of April 6, 1792. 

2 1st Cong., 1st Sess., debate in the House, June 16, 17, 18, 19, 22, 1789. 



84 THE SUPREME COURT 

later, objected to the right of the Judges to issue a 
mandamus to his Cabinet officer. Alexander White 
of Virginia said : "I would rather the Judiciary should 
decide the point because it is more properly within 
their department"; and again: "I imagine the Legis- 
lature may construe the Constitution with respect 
to the powers annexed to their department, but sub- 
ject to the decision of the Judges." It remained, how- 
ever, for Elbridge Gerry, who later became one of the 
strongest of the Anti-Federalists, to assert most clearly 
that : "The Judges are the constitutional umpire on such 
questions. . . . We are not the expositors of the Con- 
stitution. The Judges are the expositors of the Con- 
stitution and Acts of Congress. Our exposition, there- 
fore, would be subject to their revisal. The Judici- 
ary may disagree with us and undo what all our efforts 
have labored to accomplish." And Gerry further asked 
whether the Judges "because Congress has usurped 
power", were to be impeached "for doing a meritori- 
ous act and standing in opposition to their (i.e. the 
Congress') usurpation of power?" It thus appears that 
in these early days, it was not "usurpation of power" 
by the Courts which was talked of, but rather, "usur- 
pation of power" by Congress. 1 Two years later, 
the debate in Congress over the chartering of the Bank 
of North America disclosed again a general concur- 
rence of opinion among Congressmen, both of the South 
and the North, as to the right of the Court to adjudi- 
cate upon the constitutionality of the measure. 2 

1 In this same debate, the following Federalist* also contended for the power of 
the Judiciary. Fisher Ames of Massachusetts stated that : "If we declared improp- 
erly, the Judiciary will revise our decision." John Lawrence of New York said : 
"If the laws shall be in violation of any part of the Constitution, the Judges will 
not hesitate to decide against them." Peter Silvester of New York said: "If 
we are wrong, they (the Judiciary) can coned our error." William Smith of Mary- 
land said: "It is the duty of your Legislature to make your laws; your Judges 
are to expound them." 

2 1st Cong., 3d Sess., speeches in the House of Elias Boudinot of New Jersey, 



THE FIRST COURT AND THE CIRCUITS 85 

While, as seen above, the decisions of the Federal 
Circuit Courts in the early years were received in gen- 
eral with approbation, the Circuit Court system itself 
was regarded from the beginning as decidedly unsat- 
isfactory, both by the Judges themselves, by the liti- 
gants and by the general public. The Judges of the 
Supreme Court strongly objected to the imposition on 
them of this Circuit duty, and Chief Justice Jay wrote 
to the President, as early as September, 1790, urging 
that the provisions of the Judiciary Act with reference 
to such duty be altered, and contending that it was 
inconsistent and incompatible for the Supreme Court 
Judges to sit in both Courts, and that Congress had 
no constitutional power to impose these functions upon 
the Judges. At the end of this first year, 1790, Attor- 
ney-General Edmund Randolph in a report to Con- 
gress urging changes in the Judiciary Act also advo- 
cated abolition of this Circuit duty, saying : " Those who 
pronounce the law of the land without appeal ought 
to be pre-eminent in most endowments of the mind. 
Survey the functions of a Judge of the Supreme Court. 
He must be a master of the common law in all its divi- 
sions, a Chancellor, a civilian, a Federal jurist and 
skilled in the laws of each State. To expect that, in 
future times, this assemblage of talents will be ready, 
without further study, for the National service is to 
confide too largely in the public fortune. Most vacan- 
cies on the Bench will be supplied by professional men, 
who, perhaps, have been too much animated by the 
contentions of the Bar deliberately to explore this ex- 
tensive range of science. In a great measure, then, the 
Supreme Judges will form themselves after their nomi- 
nation. But what leisure remains from their itinerant 

and John Lawrence of New York, Feb. 4, 1791, William Smith of South Carolina, 
Feb. 5, William B. Giles of Virginia, Feb. 7. See also The Doctrine of Judicial 
Review (1914), by Edward S. Corwin. 



86 THE SUPREME COURT 

dispensation of justice ? Sum up all the fragments of 
their time, hold their fatigue at naught, and let them 
bid adieu to all domestic concerns, still the average 
term of a life, already advanced, will be too short for 
any important proficiency." ! Randolph further pointed 
out that it would be difficult for the Judges who had 
given an opinion on Circuit to change it when they sat 
in the full Court. He feared jealousies and antago- 
nism would creep among them. He also urged that if 
the Court became stationary, the Judges would be 
able to make reports of their decisions, which would 
be valuable to "announce the talents of the Judge"; 
and that "if the Judge whose reputation has raised 
him to office shall be in the habit of delivering feeble 
opinions, these reports will first excite surprise, and 
afterwards a suspicion, which will terminate in a vigi- 
lance over his actions." 

It was soon found that the burden thus placed upon 
the Judges was intolerable. The mere physical labor of 
travel, in view of the great distances and scanty means 
of transportation, was thoroughly exhausting. Judge 
Iredell, who had the Southern Circuit entailing a tour 
of the States of North and South Carolina and Georgia 
twice a year, as well as a journey twice a year to and from 
Philadelphia of nearly two thousand miles, quite reason- 
ably termed his life that of a "travelling postboy", 
and writing to Chief Justice Jay, in February, 1791, 
said that "no Judge could conscientiously undertake 
to ride that Circuit and perform the other parts of his 
duty." Jay, himself, who had the Northern Circuit, 
wrote that "the Circuits press hard on us all." Judge 
Johnson resigned rather than undertake the labor. 

1 Iredell, II, 292, 372, letter of Jay to Iredell, Sept. 15, 1790, inclosing draft of 
his letter of the President; letter of Iredell to Jay, Ciishing, and Wilson, Feb. 11, 
1791, protesting the arrangement of Circuits and requesting a rotation. Amer. 
State Papers, Misc., I, No. 17, report of Randolph, Dec. 27, 1790. 



THE FIRST COURT AND THE CIRCUITS 87 

Finally, President Washington himself wrote, in August, 
1791, that he hoped that Congress would give "relief 
from these disagreeable tours." 1 Besides the labori- 
ous duties it entailed, the system was defective for other 
reasons. "It has happened in more than one instance," 
wrote Jay to Rufus King, "that questions in the Cir- 
cuit Court decided by one set of Judges in the affirma- 
tive had afterwards in the same Court been decided 
by others in the negative. As writs of error do not 
reach every case, this evil has no remedy. The natural 
tendency of such fluctuations is obvious ; nor can they 
otherwise be avoided than by confining the Judges to 
their proper place, viz. the Supreme Court." 2 Fre- 
quently the Judges, through illness or impassable state 
of the highways, were unable to attend, and the conse- 
quent delays and postponements entailed great cost 
and hardships to litigants and injustice to persons 
held for trial for crimes. 3 The National Gazette said : 

1 Washington, X, letter of Aug. 7, 1791. Rufus King wrote to Southgate, 
Sept. 30, 1792: "I remember you have a cause in the Federal Courts that has 
been delayed for want of Judges to form a Court. Wilson and Iredell go to the 
Eastern Circuit. I have heard that Wilson casually observed (when here on his 
way to Connecticut, where he now is) that he should not go farther East than 
Boston and that Mr. Iredell would go to New Hampshire." 

2 King, I, Dec. 19, 1793. 

3 In the National Gazette, Jan. 5, 1793, a correspondent from Newbern, N. C, 
wrote Dec. 11, 1792: "The Circuit Court of the United States was opened here 
on the 30th of November and continued open from day to day until Tuesday 
the 11th inst., when it was adjourned by the District Judge until the 1st of June, 
next. No business of any kind was done, owing to the absence of the Circuit or 
Associate Justice. The jurors attended with great punctuality and patience the 
whole time, although this is a very busy and important season with the planter 
and farmer. Mr. Johnson, one of the Associate Justices, had held the Courts 
in South Carolina and Georgia, and was taken ill at Augusta and his letter author- 
izing the adjournment of the Court was not received until Monday, the 10th. 
Several pirates have been for many months confined here in a loathsome dungeon, 
praying for their execution as a tender mercy compared with their present con- 
finement — and two persons, who were only so unfortunate as to be witnesses of 
their crimes, not being able to give security for their appearance, are confined in 
a manner not much more comfortable. These poor wretches are now doomed to 
suffer the inclemencies of the winter in a situation already shocking to humanity." 
See also a letter from a citizen of Delaware describing the failure of Judges Iredell 
and Wilson to attend a Federal Circuit Court in that State: "Most people know 



88 THE SUPREME COURT 

The judicial system was so defective, both in point of 
principle and arrangement, and so awkward and un- 
wieldy in its operation that the second session of Con- 
gress saw the necessity of an entire alteration ; they mod- 
estly avoided the work themselves, as if it had been a task 
beyond their strength, notwithstanding the number of 
professional gentlemen in both houses, and ordered the 
Attorney General, in the Congressional style, a sort .of 
Secretary of the Law Department, to report the necessary 
amendments ; — an elaborate folio pamphlet appeared at 
the next session, and the people expected the business would 
have been immediately taken up, had not another of their 
Secretaries made a report on a project infinitely more inter- 
esting (to individuals) ; and this elegant piece of refine- 
ment and obscurity, the report of the Secretary at Law, was 
immediately consigned to oblivion ; and the great object 
of the administration of justice, and the reputation of the 
National Government were equally forgotten and neglected. 

The Judges themselves united in writing to the Presi- 
dent an urgent letter, August 19, 1792, which he trans- 
mitted to Congress, in which they said : ! 

We really, sir, find the burdens laid upon us so excessive 
that we cannot forbear representing them in strong and 
explicit terms. On extraordinary occasions, we shall always 
be ready, as good citizens, to make extraordinary exertions ; 
but while our country enjoys prosperity, and nothing occurs 
to require or justify such severities, we cannot reconcile 
ourselves to the idea of existing in exile from our families, 
and of being subjected to a kind of life on which we cannot 
reflect without experiencing sensations and emotions more 
easy to conceive than proper for us to express. . . . That the 
task of holding twenty-seven Circuit Courts a year, in the 
different States, from New Hampshire to Georgia, besides 

that these gentlemen get very handsome salaries and they know also from the 
sweat of whose brows it comes ; they know more than this, they know whose right 
it is to call them to account for their malpractices. The Government will be found 
expensive enough under the most economical administration. But to lavish the 
time and property of the citizens unnecessarily is what they cannot nor will not 
submit to." National Gazette, May 11, 1793. 
1 Amer. State Papers, Misc., I, No. 32. 



THE FIRST COURT AND THE CIRCUITS 89 

two sessions of the Supreme Court at Philadelphia, in the 
two most severe seasons of the year, is a task which, con- 
sidering the extent of the United States and the small 
number of Judges, is too burdensome. That to require of 
the Judges to pass the greater part of their days on the 
road, and at inns, and at a distance from their families, 
is a requisition which, in their opinion, should not be made 
unless in cases of necessity. 

Congress paid no heed to the request ; * but it light- 
ened the labors of the Judges somewhat by passing the 
Act of March 2, 1793, which provided that the Cir- 
cuit Courts should consist of one Supreme Court Judge 
and one District Judge ; and thereafter, the Judges 
took the Circuits in turn, instead of being confined to 
fixed Circuits. In consequence of this change, Jay, 
who during the previous year had been a candidate for 
Governor of New York, because, as he wrote, "the office 
of a Judge of the Supreme Court of the United States 
was in a degree intolerable and therefore almost any 
other office of a suitable rank and emolument was 
preferable," 2 decided to remain on the Bench. He 
still insisted, however, upon the weakness of the Fed- 
eral Judiciary system. "The Federal Courts have 
enemies in all who fear their influence on State objects. 
It is to be wished that their defects should be corrected 
quietly. If these defects were all exposed to public 
view in striking colors, more enemies would arise, and 
the difficulty of mending them be increased. When 
it is considered that the important questions expected 
to arise in the Circuit Courts have now been decided 

1 Charles Carroll wrote to John Henry, Dec. 16, 1792: "Please to inform me 
as soon as you can what alterations of the judicial system are in contemplation. 
I have heard it rumored that the State Judges are to be made Judges of the United 
States within the jurisdiction or boundaries of each State, and the Supreme Court 
to be sedentary at the seat of Congress. Such a system will never answer." Life 
of Charles Carroll of Carrollton (1898), by Kate Mason Rowland. 

2 See letter of Egbert Benson to Rufus King, Dec. 18, 1793, reporting Jay's 
answer to a second request to run for Governor. King, I. 



90 THE SUPREME COURT 

in them, I can conceive no reason for continuing to 
send the Supreme Court Judges to preside in them, of 
equal weight with the objections which oppose that 
measure." 1 

1 King, I, letter of Jay to King, Dec. 22, 1793. Other Federalists continued 
to urge the necessity of amendment of the judicial system, which, they said, "is 
defective throughout and wholly inadequate to its object." New York Daily 
Advertiser, Feb. 14, 1793. All the Judges united in an address to the President, 
Feb. 17, 1794, calling his attention again to defects in the Judiciary system. Amer. 
State Papers, Misc., I, 77. 



CHAPTER TWO 

STATE SOVEREIGNTY AND NEUTRALITY 

1792-1794 

Meanwhile, though the Federal Circuit Courts in 
these early years were dealing with questions affecting 
State sovereignty without arousing State jealousy, 
the danger of a clash between Federal and State author- 
ity in the Supreme Court itself was grave and imminent, 
owing to the appearance on its docket of a number of 
suits instituted by private individuals against the States 
themselves. The right of the Federal Judiciary to 
summon a State as defendant and to adjudicate its 
rights and liabilities had been the subject of deep appre- 
hension and of active debate at the time of the adoption 
of the Constitution ; but the existence of any such right 
had been disclaimed by many of the most eminent ad- 
vocates of the new Federal Government, and it was 
largely owing to their successful dissipation of the fear 
of the existence of such Federal power that the Consti- 
tution was finally adopted. Yet, in spite of all such dis- 
claimers, the very first suit entered in the Court at its 
February Term in 1791 was brought against the State 
of Maryland by a firm of Dutch bankers as creditors ; 
and the question of State sovereignty became at once a 
judicial issue. 1 The next year, at the February, 1792, 
Term, a second suit was entered by an individual against 
the State of New York ; and at the same time a suit in 

1 Vanstophorst v. Maryland, of which no report is made in 2 Dallas at the Febru- 
ary, 1791, Term ; but a motion for a commission to examine witnesses ordered by 
the Court at the August, 1791, Term is noted in 2 Dallas, 401 ; Oswald v. New York, 
ibid., 401. 



92 THE SUPREME COURT 

equity was instituted by a land company against the 
State of Virginia. 1 These suits aroused great alarm, 
particularly among those who had opposed the adoption 
of the Constitution and who still feared lest the inde- 
pendence of the State Governments should be lost in the 
increasing growth and consolidation of the powers of the 
Federal Government in all its branches. A Committee 
of the Legislature of Virginia, in June, 1792, protested 
against the illegality of the suit against that State, 
saying that "the jurisdiction of the Court does not and 
cannot extend to this case . . . and that the State cannot 
be made a defendant in the said Court at the suit of any 
individual or individuals", and it resolved "that the 
Executive be requested to pursue such measures as may 
seem most conducive to the interest, honor and dignity 
of the Commonwealth." 2 How extravagant were the 
apprehensions of the result of the maintenance of such 
suits, a letter from Philadelphia appearing in many 
newspapers of the day well illustrates : ' The writ 
was served upon the Governor (of Maryland), the 
Supreme Executive of the State and upon the Attorney 
General. Two months were given for the State to 
plead. Should this action be maintained, one great 
National question will be settled — that is, that the 

1 The case was Indiana Company v. Virginia, not reported in Dallas Reports 
but commented on in Patrick Henry (1909), by William Wirt Henry, II, 462, 538; 
George Mason, Life, Correspondence and Speeches (1912), by Kate Mason Rowland, 
II, 342-345. See also letter from William R. Davie of North Carolina to Judge 
Iredell, June 12, 1793: "In your letter of 14th of February, you mention a bill in 
equity being filed by the Indiana Company to recover damages, etc. This is 
surely of the first impression and has excited my curiosity very much. Pray what 
rules are you guided by in the Supreme Court; for this is not the first novelty 
your practice there has produced." 

2 See Observations upon the Government of the United States of America (1791), 
by James Sullivan, Attorney-General of the State of Massachusetts and a reply 
thereto, An Enquiry into the Constitutional Authority of the Supreme Federal Court 
over the Several States in Their Political Character (1792), by a Citizen of South 
Carolina (David Ramsay); Dunlap's American Daily Advertiser, Feb. 3, 1792; 
Gazette of the United States, Feb. 20, 1790, Feb. 4, 1792; Connecticut Courant, March 
7. 1791 ; New York Journal, March 24, 1791 ; Federal Gazette, Feb. 25, 1790. 



STATE SOVEREIGNTY — NEUTRALITY 93 

several States have relinquished all their Sovereignties, 
and have become mere corporations, upon the establish- 
ment of the National Government; for a sovereign 
State can never be sued or coerced by the authority of 
another government. Should this point be supported 
in favour of this cause against Maryland, each State in 
the Union may be sued by the possessors of their public 
securities and by all their creditors. As the executions 
will be against them as mere corporations, they will be 
issued against all the inhabitants generally ; the Gov- 
ernour and all other citizens will be alike liable. Such 
offices will not be coveted. Even the constitutional 
privileges in the several States against arresting Senators 
and Representatives while the Courts are sitting, 
will be done away with." The issue came squarely 
before the Court in a suit brought at the August, 
1792, Term by two citizens of South Carolina, executors 
of a British creditor, against the State of Georgia, 
Chisholm v. Georgia, 2 Dallas, 419. A motion was 
made on August 11 by Attorney-General Edmund 
Randolph, as counsel for the plaintiff, that unless the 
State should enter its appearance at the next Term, 
a judgment should be entered against it. 1 The Court, 
however, was anxious "to avoid every appearance of 
precipitancy and to give the State time to deliberate 
on the measures she ought to adopt", and consequently 

1 In Marshall, III, 554, note 2, 582, it is stated that Chisholm v. Georgia involved 
Yazoo land grants ; this is a mistake, it was the ease of Moultrie v. Georgia, filed in 
1796, which involved such grants. 

Dallas in his Reports does not state the circumstances under which the Chisholm 
Case arose. They were as follows (see Philadelphia dispatch in Salem Gazette, 
March 6, 1793) : "A citizen of Georgia had left America prior to the Revolution 
and removed to Great Britain, after settling a partnership account with two part- 
ners in trade whose bonds he took for the balance due. After his decease, his exec- 
utors (who were citizens of South Carolina) on making application for payment 
found that these two persons who had given their joint bonds had been inimical 
to the cause of liberty in the United States and that their property was confis- 
cated. The executors, alleging that the bond was given previous to the Revolu- 
tion, applied to the State of Georgia for relief." 



94 THE SUPREME COURT 

postponed consideration of the motion to the next 
Term. On February 5, 1793, the case came on for 
argument, the State of Georgia refusing to appear and 
presenting a written remonstrance of protestation 
through Alexander J. Dallas and Jared Ingersoll of 
Pennsylvania, denying the jurisdiction of the Court to 
entertain any such suit. To this attitude, Attorney- 
General Randolph, who appeared for the plaintiff, 
referred in opening his argument, saying: "I did not 
want the remonstrance of Georgia, to satisfy me that 
the motion which I have made is unpopular. Before 
that remonstrance was read, I had learned from the 
acts of another State, whose will must always be dear to 
me, that she too condemned it. On ordinary occasions, 
these dignified opinions might influence me greatly; 
but, on this, which brings into question a constitutional 
right, supported by my own conviction, to surrender it 
would be in me an official perfidy." On February IS, 
1793, only fourteen days alter Randolph's argument, the 
Court rendered its decision, sustaining the right of a 
citizen of one State to institute an original suit in the 
Supreme Court against another State Tor breach of 
contract. The public interest in the case was so great 
that the Clerk of the Court, Samuel Bayard, issued to 
the newspapers a comprehensive summary which, he 
stated, "will be found accurate, though by no means SO 
full as I could wish. As the determination <>l' Monday 
may perhaps give umbrage to the advocates of 4 State 
Sovereignty', it i> ardently wished that the arguments 
of the Judges and the speech of the Attorney General 
on this important subject may early be submitted to 
the public eye." 1 After reciting the preliminary 

1 This account has. to far m ii known, never been republiahed; it givea i more 
concise and more vivid picture of tho case than that which appeared in * Dallas. 
It was published in Dunlap's American Daily Ailvrrtisrr, Feb. 21, 17<>:{. Sec alao 
Aurora, Feb. 22, 1793; Gazette of the United State*, Feb. 28, L798; Columbian c,,,- 
tinel, March 2, 1793, and many other newspapers. 



STATE SOVEREIGNTY — NEUTRALITY 95 

steps taken in the case and describing Randolph's able 
argument of two and one half hours, the summary 
continued: "When Mr. Randolph had closed his 
speech, the Court, after remarking on the importance of 
the subject now before them, and the necessity of 
obtaining every possible light on it, expressed a wish 
to hear any gentleman of the Bar who might be disposed 
to take up the gauntlet in opposition to the Attorney 
General. As no gentlemen, however, were so disposed, 
the Court held the matter under advisement until 
Monday, the 18th instant, when in presence of a 
numerous and respectable audience, they severally 
declared their opinions on the question that had 
been argued. Judge Iredell was first called on by the 
Chief Justice for his opinion. In an argument of an 
hour and a quarter, he maintained the negative of this 
question ; he considered the States as so many separate 
independent sovereignties. . . . Judge Wilson next took 
a very broad and enlarged view of the question, which 
he thought would again resolve itself into a question 
of no less magnitude than whether the people of the 
United States formed a nation. . . . His argument was 
elegant, learned and contained principles and sentiments 
highly republican. It occupied an hour and concluded 
pointedly and unequivocally for the motion of Mr. Ran- 
dolph. 1 . . . Chief Justice Jay delivered one of the most 
clear, profound, and elegant arguments perhaps ever 
given in a Court of Judicature. ' ' Short accounts of Judge 
Blair's and Judge Cushing's opinions were also given. 

1 In Judge Wilson's opinion, the opening words of which now read: "This is 
a case of uncommon magnitude. One of the parties to it is a State, certainly 
respectable, claiming to be sovereign. The question to be determined is, whether 
this State so respectable, and whose claim soars so high is amenable to the juris- 
diction of the Supreme Court of the United States?" there was an interesting 
change made from his original draft. In the draft in Wilson's handwriting which 
is now in the Library of the Historical Society of Pennsylvania, the second sen- 
tence reads : " One of the parties who appears before this tribunal is a State ", etc. 
The words in italics were omitted in the opinion as delivered. 



96 THE SUPREME COURT 

The decision fell upon the country with a profound 
shock. Both the Bar and the public in general ap- 
peared entirely unprepared for the doctrine upheld 
by the Court ; and their surprise was warranted, when 
they recalled the fact that the vesting of any such 
jurisdiction over sovereign States had been expressly 
disclaimed and even resented by the great defenders 
of the Constitution, during the days of the contest over 
its adoption. Some of the ultra-Federalists now up- 
held the decision of the Court, which, they said, " fixes a 
most material and rational feature in the Judiciary of 
the United States that every individual of any State 
has the natural privilege of suing either the United 
States, or any State whatsoever in the Union, for redress 
in all cases where he can present a just claim, a loss or an 
injury." 1 Many others of the Federalist Party and 
practically the entire body of Anti-Federalists were 
excitedly opposed to the "extraordinary determination" 
enounced by the Court. "Its novelty," said a Boston 
newspaper, "is not less striking than the importance of 
the consequences which may result from an acquiescence 
in this stride of authority. . . . When the persons in 
opposition to the acceptance of the new Constitution 
hinged on the Article respecting the power of the Judi- 
ciary Department being so very extensive and alarming 
as to comprehend even the State itself as a party to an 
action of debt, this was denied peremptorily by the 
Federalists as an absurdity in terms. But it is now 
said that the eloquent and profound reasoning of the 
Chief Justice has made that to be right which was, at 
first, doubtful or improper." 2 Another newspaper 

1 Philadelphia dispatch to Connecticut Courant, Feb. 25, 1793; American Daily 
Advertiser, Feb. 19, 1793; Providence Gazette, March 2, 1793. See also letter from 
" Solon " in Independent Chronicle, Sept. 19, 1793, stating that individual citi2ens 
ought to have their rights protected and be as able to sue a State as any other cor- 
poration. 

2 Independent Chronicle, April 4, 1793. 



STATE SOVEREIGNTY — NEUTRALITY 97 

writer alleged that the decision " involved more danger 
to the liberties of America than the claims of the 
British Parliament to tax us without our consent. . . . 
If you submit to the demand, you will authorize a 
sovereign jurisdiction to exercise a power which can 
never be exercised by it but to the destruction of your 
own power, to the overthrow of the State Governments, 
to the consolidation of the Union for the purpose of 
arbitrary power, to the downfall of liberty and the 
subversion of the rights of the people ; for whenever all 
the important powers of government shall be centred in 
that of the United States, it will be without check or 
control." Others said that "if the sovereignty of the 
States is to be thus annihilated, there must be a con- 
solidated Government and a standing army", and 
that the "craft and subtility of lawyers" had intro- 
duced this clause into the Constitution as "the plan of 
all aristocrats to reduce the States to corporations." x 
Another stated that it "fritters States away to corpora- 
tions." Another said that : " It must excite serious ideas 
in those who have from the beginning been inclined to 
suspect that the absorption of the State governments 

1 It was also said that this "usurpation" was "apprehended by many of the 
members of the Massachusetts Convention when deliberating on that very clause 
of the Federal Constitution, respecting the Judiciary power, but which apprehen- 
sions were said to be groundless by the advocates of the Constitution." See 
letter of "Brutus"; letter of "A Republican"; article on "The Crisis"; letter 
from " Hampden " ; letter from "Sydney" to "Crito" in Independent Chronicle, 
July 18, 25, Aug. 1, 15, 1793 ; see also Boston Gazette, Sept. 23, 1793. See letters 
from "Anti-Wizard" in Columbian Centinel, Aug. 3, 10, 1793. To Federalist 
letters referring to the "inflammatory strictures on the Chisholm Case" and stat- 
ing that: "If by losing independence is meant losing the power of doing wrong, 
if setting justice and common sense at defiance, if oppressing the individual with 
the insulting reply that the State is above the law, lawless, then God be praised 
that such independence exists no longer", the Anti-Federalists made reply that 
the writers were evidently "a member of the tribe of monarchy men", "an old 
Tory . . . who wishes for an opportunity of getting back from the Government 
some confiscated property", "a sophistical aristocrat whose writings are calcu- 
lated to introduce a consolidated Government"; see Columbian Centinel, July 
31, Aug. 3, 7, 10, 1792; see also letter of "Crito", a Federalist, and of "Uncle 
Toby", "Essex", and "Sydney", Anti-Federalists, in Salem Gazette, July 30, 
Aug. 6, 13, 15, 20, 27, 1793. 

VOL. I — 4 



98 THE SUPREME COURT 

has long been a matter determined on by certain in- 
fluential characters in this country who are aiming 
gradually at monarchy. Federal jurisprudence has 
aimed a blow at the sovereignty of the individual States, 
and the late decision of the Supreme tribunal of the 
Union has placed the ridgepole on the wide-extended 
fabrick of consolidation. The representatives of the 
free citizens of the independent States will, no doubt, 
cherish the spirit of investigation and remonstrate on 
this subject with wisdom and firmness." * A Federalist 
paper in Massachusetts remarked editorially that 
"the decision has excited great apprehension in 
some. . . . Many pieces have already appeared in the 
public papers on the subject, some of which at least 
are expressed more to the passions than to the reason." 2 

1 National Gazette, June 1, 1793 ; Boston Gazette, Aug. 5, 1793. 

2 Salem Gazette, July 23, 1793. This paper was one of the few which published 

Chief Justice Jay's opinion in full, saying: "Jay appears to have investigated 

the subject with great coolness, candor and regard to the rights of citizens." The 

Gazette of the United States, Aug. 10, 14, 17, 1793, also printed the opinion in full. 

Most of the papers, however, printed only a short summary. An interesting 

complaint as to this failure of publicity appeared in a letter to the National Gazette, 

Aug. 10, 1793: "Mr. Freneau. I have heard nothing more regretted by the best 

friends of our country, than the manner adopted on publishing the opinions of the 

Judges of the Supreme Court of the United States in the most important question 

which ever did, or ever will, come before that Judicature, viz. the suability of a 

State in that Court by a citizen of another State. So just, so wise, so important 

a decision could not have been made too public ; the respective opinions of the 

Judges ought to have been inserted at large in all the newspapers throughout the 

continent; and this would undoubtedly have been the case, had not a copyright 

been made of them. Good policy would have induced an unlimited publication, 

but a more effectual mode could not have been adopted, than the one chosen, to 

prevent these important opinions from being read by the great body of the people : 

a large pamphlet, price 50 cents, was made of them and claimed as a copyright, in 

order to prevent their being republished in the gazettes, whereas they ought to 

have been public property, that they might be published in a six penny pamphlet 

and in all the newspapers, in order that the great body of citizens might be informed 

of the great principles of this important decision. As an individual citizen, I 

hope it is not yet too late ; and that the Judges at their ensuing session will direct 

their opinions at large to be published in the newspapers of your city, that the 

claim of a copyright therein may be withdrawn, and that public notice thereof may 

be given to the end that the people may have the necessary information whereby j 

to judge of the meditated alteration in the Constitution of the United States by' 

the enemies of equality. For my own part, I have never yet heard a good reason 

assigned, why a fraudulent State should not be amenable to justice, as well as a 

fraudulent individual, for such we know there are." 



STATE SOVEREIGNTY — NEUTRALITY 99 

While this opposition to the Court's decision was to 
some extent based on divergencies of political theories 
as to State sovereignty, the real source of the attack 
on the Chisholm Case was the very concrete fear of the 
"numerous prosecutions that will immediately issue 
from the various claims of refugees, Tories, etc., that will 
introduce such a series of litigation as will throw every 
State in the Union into the greatest confusion." * In 
the crucial condition of the finances of most of the 
States at that time, only disaster was to be expected if 
suits could be successfully maintained by holders of 
State issues of paper and other credits, or by Loyalist 
refugees to recover property confiscated or sequestered 
by the States ; and that this was no theoretical danger 
was shown by the immediate institution of such suits 
against the States in South Carolina, Georgia, Virginia 
and Massachusetts. 2 In the latter State, Governor 
John Hancock at once called a special session of the 
Legislature; 3 and that body, by resolve of Septein- 

1 "The subject is now but of infinite importance to the rights and property of 
every individual citizen. For should we acquiesce in the decision or take no meas- 
ures to check its progress, the boasted liberties of our country . . . will become a 
'sound and nothing else.' ' Independent Chronicle, July 25, 1793. "Nothing 
remains but to give the key of our treasury to the agents of the Refugees, Tories 
and men who were inimical to our Revolution, to distribute the hard money now 
deposited in that office to persons of this description," id., Sept. 16, 1793 ; see also 
National Gazette, Aug. 7, 1793. 

2 V assail v. Massachusetts ; Huger v. South Carolina (1797), 3 Dallas, 339; see 
Moultrie v. Georgia (not reported in Dallas Reports), referred to in Howard v. Inger- 
soll (1851), 13 How. 408, in which it is said that Georgia had, in 179G, "just been 
released from an unpleasant litigation." The case arose out of an Act passed by 
the State in 1789, conveying lands to the Virginia, South Carolina and Tennessee 
Yazoo Companies, before the 11th Amendment ; a bill in equity was filed in 1796 for 
specific performance of the State's contract to convey land ; it was set for hearing 
at the August Term in 1797, and adjourned to the next Term, when it was dismissed. 
Amer. State Papers, Public Lands, 1, 167 ; New York Spectator, March 16, 1807. See 
also Catlin v. South Carolina, in the official records ; Grayson v. Virginia, 3 Dallas, 320. 

3 The Massachusetts Mercury, July 16, 1793, said: "A correspondent thinks 
too much praise cannot be given to our worthy Governor for his vigilance in issuing 
a proclamation for the meeting of the General Court on the very day and perhaps 
at the moment when the Marshal of the District Court served him with a writ 
legally issued from the Supreme Court of the United States." "The precept now 
served on the Governor and Attorney General is for monies arising from the seques- 



100 THE SUPREME COURT 

ber 27, 1793, urged upon Congress "the adoption of 
such Amendments to the Constitution as will remove 
any clause or Article of the said Constitution which can 
be construed to imply or justify a decision that a State 
is compellable to answer in any suit by an individual or 
individuals in any Court of the United States." 1 The 
Legislature of Virginia adopted similar resolutions, 
stating that the Court's decision was "incompatible 
with and dangerous to the sovereignty and independ- 
ence of the individual States, as the same tends to a 
general consolidation of these confederated republics." 
The State of Georgia took the most violent action ; 
after the first continuance of the case in 1792, a resolu- 
tion had been introduced into the Georgia Legislature, 
December 14, 1792, which, though not adopted, ex- 
pressed the sentiment of the State, to the effect that 
it would not be bound by the decision of the Court 
and would regard it as "unconstitutional and extra- 
judicial." After the decision rendered by the Court 
and the default entered at the February Term of 1793, 
judgment for the plaintiff was entered and a writ of 
inquiry of damages awarded at the February Term in 
1794. The writ, however, was never sued out or exe- 
cuted. Meanwhile, the House of Representatives in 
Georgia passed a bill, on November 21, 1793, providing 
that any Federal marshal or oilier person who executed 
any process issued by the Court in this case should be 
declared "guilty of felony and shall suffer death, without 
benefit of clergy, by being hanged." The bill, however, 

tered property of a refugee. ... If he should obtain what he has sued for, what 
a wide extended door will it open for every dirty Tory traitor to his country's lib- 
erties to enter." Massachusetts Mercury, July 23, 1793. 

1 As early as March, 1793, a Committee had been appointed by the Massachu- 
setts Legislature to consider how far the Stale was directly or indirectly affected 
by the decision, "in order that our true situation may be known and understood, 
and such measures adopted on this occasion by the Commonwealth as its honour 
and interest may demand and the peace and safety of the Uuiou require." See 
Columbian Centinel, March 23, 1793. 



STATE SOVEREIGNTY — NEUTRALITY 101 

never became law. 1 In Congress, a resolution for an 
Amendment to the Constitution to counteract the 
effect of the case had been introduced into the House, 
February 19, 1793, the day after the decision, as follows : 
"that no State shall be liable to be made a party 
defendant in any of the Judicial Courts established or to 
be established under the authority of the United States, 
at the suit of any person or persons, citizens or foreign- 
ers, or of any body politic or corporate whether within or 
without the United States." On February 25, the Sen- 
ate tabled another resolution, which was re-introduced 
January 2, 1794, and which finally became the Eleventh 
Amendment that : " The Judicial power of the United 
States shall not be construed to extend to any suit in law 
or equity, commenced or prosecuted against one of the 
United States by Citizens of another State, or by Citi- 
zens or Subjects of any Foreign State." Though this 
Amendment was agreed to by the Senate, January 14, 
1794, by a vote of 23 to 2, and on March 4 by the House 
by a vote of 81 to 9, it was not until January 8, 1798, 
nearly four years later, that the necessary number of 
States ratified it. New Jersey and Pennsylvania refused to 
ratify and South Carolina and Tennessee failed to take 
any action. 2 As soon as ratification took place, however, 

1 State Documents on Federal Relations (1911), by Herman V. Ames. 

2 It is curious to note the extremely informal and careless manner in which the 
ratification was promulgated, as described by Allen C. Braxton in Virginia Bar 
Ass. Rep. (1907), XX: "On January 8, 1798, President Adams transmitted to 
Congress a report of the Secretary of State containing a certified copy of the rati- 
fication by Kentucky of what the President described as ' the Amendment of the 
Constitution of the United States proposed by Congress in their resolution of the 
2nd day of December, 1793, relative to the suability of the States.' The Presi- 
dent then added, by the way, that ' this Amendment, having been adopted by three 
fourths of the several States may now be declared to be a part of the Constitution 
of the United States.' As a matter of fact, there was no such resolution as the 
President referred to, but the resolution proposing the Amendment was of Janu- 
ary 2, 1794, instead of December 2, 1793. In addition to this, neither the President 
nor the Secretary of State ever did report what States constituted the three fourths 
which he said had ratified it. On the contrary, the records of the office of Secre- 
tary of State show only six States as having ratified the Eleventh Amendment. 



102 THE SUPREME COURT 

the Court, in Hollingsworth v. The State of Virginia, 
3 Dallas, 378, on February 4, 1798, declared that it had 
no jurisdiction "in any case, past or future in which a 
State was sued by citizens of another State, or by citizens, 
or subjects, of any foreign State." And thus all cases of 
this nature pending on its docket were swept away. 
After delivering its fateful decision in the Chisholm 
Case in February, 1793, the Court rendered no further 
opinions for a year, owing to the fact that, at the time 
of its usual August Term, yellow fever was raging in 
Philadelphia. 1 When it met for its February Term in 
1794, a new Judge took his place on the Bench — Wil- 
liam Paterson of New Jersey — whom President Wash- 
ington had appointed on March 4, 1793, to fill the va- 
cancy caused by the resignation of Judge Thomas 
Johnson. Paterson, then forty-four years of age, was 
the Chancellor of New Jersey, and had been State At- 
torney-General, one of the leaders of the Federal Con- 
vention, and United States Senator for four years. 2 

Finally, notwithstanding the President's suggestion that the Amendment might 
now properly be declared adopted, and notwithstanding a resolution later on intro- 
duced in Congress, calling on him to proclaim the adoption of this Amendment, 
if in fact it had been ratified, yet it does not appear that either the President or 
Congress ever did formally declare the Eleventh Amendment adopted." 

1 Similar prevalence of yellow fever prevented any business at the August, 1794, 
Term, and the August, 1797, Term, 3 Dallas, 369. In August, 1798 and 1799, 
yellow fever was again prevalent in Philadelphia. In the Aurora, Sept. 31, 1799, 
it is stated that the offices of the Secretary of State, War, Treasury, Navy, etc., 
had been removed to Trenton, N. J. By the Act of Feb. 25, 1799, it was provided 
that: "Whenever in the opinion of the Chief Justice, or in case of his death or 
inability, of the Senior Associate Justice of the Supreme Court of the United States, 
a contagious sickness shall render it hazardous to hold the next stated session of 
the said Court at the seat of the government, it shall be lawful for the Chief or 
such Associate Justice to issue his order to the Marshal, ' to adjourn the session to 
another place within the same or an adjoining district.' " 

2 To Paterson, Washington had written, Feb. 20, 1793: "I think it necessary 
to select a person who is not only professionally qualified to discharge that 
important trust, but one who is known to the public, and whose conduct meets 
their approbation. I shall have the satisfaction to believe that our country will 
be pleased with and benefited by the acquisition." 

There is a singular and little known fact regarding this appointment. The 
nomination was first made to the Senate on Feb. 27, 1793, at a time when, under 
the Constitution, Paterson was disqualified from holding office, since the office of 



STATE SOVEREIGNTY — NEUTRALITY 103 

At this Term, only two cases were heard, but each 
was closely connected with vital political issues. The 
first, Georgia v. Brailsford, involved another phase of 
the question of State sovereignty and presented a cu- 
rious history. Brailsford, an alien and a British credi- 
tor, had sued a Georgia citizen in the United States 
Circuit Court on a debt which the State of Georgia 
had sequestrated. 1 The State, however, applied to 
the Circuit Court to be admitted as a party defendant 
in order to set up its title to the property, and having 
been refused had filed an original bill in equity in the 
Supreme Court seeking an injunction against the Cir- 
cuit Court proceedings. Thus, while complaining in 
the Chisholm Case because it had been made a party to 
a suit by a British creditor, Georgia was complaining 
in the Brailsford Case because it had not been allowed 
to become a party in another suit by a British cred- 
itor. After argument by Alexander J. Dallas against 
Edmund Randolph, at an earlier Term, the Court 
had decided that a temporary injunction should issue. 
It is interesting to note that in this first case in which 
opinions of the Judges were reported, the first opinion 
to be expressed had been a dissent by Judge Johnson. 
The decision had elicited from Randolph a pungent 
letter in which he expressed to James Madison decidedly 
uncomplimentary views of the Court: "The State 
of Georgia applied for an injunction to stop in the 

Supreme Court Judge had been created during the period for which Paterson 
had been elected Senator from New Jersey. When Washington's attention was 
called to this, he sent a message to the Senate, Feb. 28, 1793, saying: "I was led 
by a consideration of the qualifications of William Paterson of New Jersey to 
nominate him as an Associate Justice of the Supreme Court of the United States. 
It has since occurred that he was a member of the Senate when the law creating 
that office was passed, and that the time for which he was elected is not yet expired. 
I think it my duty, therefore, to declare that I deem the nomination to have been 
null by the Constitution." 

1 See Samuel Brailsford v. James Spalding in which Judge Iredell had held that 
the Treaty repealed the State law sequestrating British debts. Gazette of the United 
States, May 16, 1792 ; Georgia v. Brailsford, 2 Dallas, 402, 415, 3 Dallas, 1. 



104 THE SUPREME COURT 

Marshal's hands a sum of money which had been re- 
covered in the last Circuit Court by a British subject 
whose estate had been confiscated. It was granted 
with a demonstration to me of these facts ; that the 
Premier (Jay) aimed at the cultivation of Southern 
popularity ; that the Professor (Wilson) knew not an 
iota of equity ; that the North Carolinian (Iredell) 
repented of the first ebullitions of a warm temper ; 
and that it will take a score of years to settle, with 
such a mixture of Judges, a regular course of chancery." l 
At the next Term in February, 1793, the Court, having 
decided the Chisholm Case against the contentions of 
Georgia, was evidently reluctant to rule against her 
a second time ; hence on Randolph's motion to dissolve 
the injunction, while holding that Georgia's claim to 
the debt was a right to be pursued at common law and 
not by bill in equity, it decided to continue the injunc- 
tion until this right might be determined at law in a 
suit by the State. Accordingly an "amicable action" 
at law was entered in the Court, and the case was tried 
before a special jury, in 1794. On the questions of law, 
the Judges united in the charge, which was delivered by 
Chief Justice Jay. The jury found in favor of Brails- 
ford ; and the State's claim was denied on the ground 
that a sequestration law did not operate to confiscate 
the debt or to vest title in it in the State. 2 

1 Omitted Chapters of History Disclosed in the Life and Papers of Edmund Ran- 
dolph (1888), by Moncure P. Conway, 168, letter of Aug. 12, 1792. 

2 The following account appeared in the American Daily Advertiser, Feb. 17, 
1794: "On the 4th of Feb., 1794, a special jury was qualified to try the cause, 
which, during four days, was argued by Mr. Ingersoll and Mr. Dallas for the State 
of Georgia, and Mr. Bradford, Mr. Tilghraan and Mr. Lewis for the defendants. 
As we understand that a full report of the record and the pleadings is preparing 
for the press, we shall only add on this occasion the charge of the Court which 
was delivered by Jay, Chief Justice, on the 7th of February." For Chief Justice 
Jay's charge in full, see New York Daily Advertiser, Feb. 11, 20, 1794. Two other 
cases were tried by a jury in the Supreme Court — Oswald v. New York and datlin 
v. South Carolina. See History of the Supreme Court, by Hampson L. Carson, 
169, note; see also New Federal Judicial Code, in Amer. Law Rev. (1912), XLVI. 



STATE SOVEREIGNTY — NEUTRALITY 105 

The only other case decided at this February, 1794, 
Term, Glass v. Sloop Betsy, was one of supreme impor- 
tance in the early history of the country ; for it called 
for a judicial decision vital to the maintenance of the 
policy of neutrality — a policy which the Government 
had adopted as the only safe course amidst the inter- 
national complications and internal party dissensions 
then darkening the pathway of the young Nation. 
"It is very necessary for us to keep clear of the Euro- 
pean combustion, if they will let us," Jefferson had 
written in May, 1793. :t This summer is of immense 
importance to the future condition of mankind all over 
the earth, and not a little so to ours." l The new doc- 
trines of President Washington's famous Neutrality 
Proclamation of April 22, 1793 — that great State 
paper which is now regarded by international law 
writers as the foundation of the law of neutrality — 
were at that time the subject of heated opposition ; 
the country was sharply divided into pro-British and 
pro-French factions, each of which looked with equa- 
nimity on breaches of our neutrality by the belliger- 
ents ; the new French Minister, Genet, relying on 
American sympathy, was engaged in fitting out pri- 
vateers in our ports and setting up Prize Courts here 
for the condemnation of vessels captured by such priva- 
teers ; State Judges and other officials were in hearty 
sympathy with Genet's activities ; and there were no 
Federal statutes in existence dealing with the subject. 
In consequence of these conditions, the problem of the 
enforcement of the Neutrality Proclamation was a diffi- 
cult one, unless the Federal Courts should decide that 

In Pennsylvania v. Wheeling, etc. Bridge Co., 9 How. 647 (1850), Daniels, J., diss., 
expressed an opinion that the case should go to a jury ; the case was a bill in equity 
brought by the State of Pennsylvania, and the Court referred it to a Commis- 
sioner to find the facts. 

1 Harry Innes Papers MSS, letter of Jefferson to Innes, May 23, 1793. 



106 THE SUPREME COURT 

they were vested with power in Admiralty to restrain 
or penalize activities violative of international law. 
Hence, when the question of the possession of such 
power by these Courts arose, in June, 1793, in a case 
in the District Court of the United States in Pennsyl- 
vania, the decision was awaited with the utmost anxi- 
ety by the President and his Cabinet. Two American 
neutral vessels captured by French privateers in our 
territorial waters — The William and The Fanny — 
had been libeled by their American owners. Eminent 
counsel, Peter S. Duponceau and Jared Ingersoll, argued 
that the Federal Court had no jurisdiction and that 
under an existing treaty France had the right to bring 
all prizes into our ports ; and they contended that the 
United States must seek its redress by negotiation and 
that the Courts must keep clear of all the international 
complications and "disturbances which agitate Eu- 
rope." l William Rawle, for the American owners, 
urged that the Court take jurisdiction, saying : "From 
the well-known spirit of liberty and justice which 
breathes through all the public acts of France since her 
revolution, he was persuaded that she would be per- 
fectly satisfied with this equitable mode of settling the 
business." William Lewis, on the same side, said that 
"the honor and dignity of the United States are deeply 
involved in the decision of this case ; it involves a 
violation of the peace of the country, and if, when two 
powers are at war, one may invade our territory, our 
commercial intercourse with foreign nations and our 
tranquility become materially involved. ... It has 
been said that this is a cause between the citizens of 
Great Britain and the citizens of France. It is the 



1 For account of the proceedings, see General Advertiser, June 7, 19, 21, 24, 
29, 1793; American Daily Advertiser, June 17, 24, 1793; The Diary or Loiidun's 
Register, June 24, 1793. 



STATE SOVEREIGNTY — NEUTRALITY 107 

cause of America herself, inasmuch as it is the duty of 
this country to preserve a strict neutrality." To the 
objections raised that no precedent for the assump- 
tion of jurisdiction by a Court of Admiralty could be 
found, he replied that these privateers had gone further 
than any one before: "After injuring our trade by 
watching off our rivers and bays for vessels, after mak- 
ing a capture in our territory, they had added insult 
to injury and brought the prize to the very seat of 
government — an act altogether unprecedented for 
audacity." Lewis and Rawle believe, wrote Alex- 
ander Hamilton to Rufus King, "that the District or 
Admiralty Court will take cognizance of this question. 
They argue that it would be a great chasm in the law 
that there should not be some competent judicial 
authority to do justice between parties in the case of 
an illegal seizure within our jurisdiction. . . . That 
though, as a general principle, a Court of a neutral na- 
tion will not examine the question of prize or not prize 
between belligerent powers, yet this principle must 
except the case of the infraction of the jurisdiction of the 
neutral power itself. . . . This is their reasoning, and 
it has much force. The desire of the Executive is to 
have the point ascertained." 1 To the consternation 
of the President, Judge Richard Peters decided that the 
Court was not vested with power to inquire into the 
legality of the prize. While "anxious for the peace 
and dignity of my country", he stated that "not con- 
sidering the Court in this instance the vindicator of 
the rights of the Nation, I leave in better hands the 
discussion on the subject of National insult and the 
remedy for an invasion of territorial rights." The 
President was unwilling to accept this decision of an 
inferior Court as final ; accordingly, he directed the 

1 Hamilton, X, letter of June 15, 1793. 



108 THE SUPREME COURT 

Governor of Pennsylvania to place guards over The 
William; he issued an Executive order that prizes 
taken by French privateers in violation of neutrality 
and brought into our ports should be restored to their 
owners; and to Genet's protest at this action he replied, 
through Jefferson as Secretary of State, that "an appeal 
to the Court of last resort" would decide the question 
finally. 1 Meanwhile, in order to avoid further delay, 
Washington took the radical step of causing a letter to 
be sent by Jefferson, addressed to Chief Justice Jay, 
and asking the Judges of the Supreme Court whether 
the President might seek their advice on questions of 
law : 

The war which has taken place among the powers of 
Europe produces frequent transactions within our ports 
and limits, on which questions arise of considerable diffi- 
culty, and of greater importance to the peace of the United 
States. These questions depend for their solution on the 
construction of our treaties, on the laws of nature and na- 
tions, and on the laws of the land, and are often presented 
under circumstances which do not give a cognizance of them 
to the tribunals of the country. Yet their decision is so 
little analogous to the ordinary functions of the Executive 
as to occasion much embarrassment and difficulty to them. 
The President would, therefore, be much relieved if he 
found himself free to refer questions of this description to 
the opinions of the Judges of the Supreme Court of the 

1 See National Gazette, June 22, 28. 1793, publishing Judge Peters' decision in 
full; see General Advertiser, July 2, 1793, for long letter M to the President's ac- 
tion; see also American Daily Advertiser, Aug. . r >, 1793; and U to restoration of 
prizes, sec Connecticut Journal, Aug. 28, Sept. I, 1796; Massachusetts Mercury, 

Sept. 17, 17!):'». 

Writing to Jefferson for his opinion, July 11, 1798, Washington said: "What 
is to be done in the case of the Little Sarah now at Chester? Is the Minister of 
the French Republic to set the acts of this Government at defiance w ith impunity? 
And then threaten the executive with an appeal to the people? What must the 
world think of such conduct, and of the Government of the United Statea in sub- 
mitting to it?" Washington, X, 865; Hamilton, X, letter to Hufus King, Aug. 
13. 1793. See also General Advertiser, July 22, 1793, for interesting letter from 
"Metellus to Juba" regarding the Little Sarah. 



STATE SOVEREIGNTY — NEUTRALITY 109 

United States, whose knowledge of the subject would secure 
us as against errors dangerous to the peace of the United 
States, and their authority ensure the respect of all parties. 
He has therefore asked the attendance of such of the Judges 
as could be collected in time for the occasion, to know, in 
the first place, their opinion, whether the public may, with 
propriety, be availed of their advice on these questions. 
And if they may, to present, for their advice, the abstract 
questions which have already occurred, or may soon occur, 
from which they will themselves strike out such as any 
circumstances might, in their opinion, forbid them to pro- 
nounce on. 

Hamilton had objected to this reference to the Judges, 
on the ground that the matter was not within the 
province of the Judiciary. Washington, however, in 
deference to the wishes of Jefferson, had decided to 
take this action, and accordingly Hamilton had framed 
twenty-nine questions relating to international law, 
neutrality and the construction of the French and 
British treaties, which were transmitted with Jefferson's 
letter for the consideration of the Judges. 1 While the 
impression was prevalent at that period that the Presi- 
dent had the right to seek the opinion of the Judges 
on questions of law, it is interesting to note that this 
move on his part was the subject of adverse criticism 
in the pro-French newspapers, one of w T hich commented 
as follows: "It is said that the Judges of the United 
States have been convened to assist the understanding 
of our Executive on the treaty between France and the 
United States. It is a little strange that lawyers only 

1 See Jefferson, VII, letter of July 18, 1793 ; Washington, X, letter of July 23, 
1793; Washington, X, 542-543. Twenty-two of these questions are printed in 
Hamilton (Lodge's ed.), IV, 193, 197, note; and see Advisory Opinions in Legal 
Essays (1908), by James B. Thayer. It may be noted that Hamilton had found 
no objection to consulting personally with Jay over such matters, for he had cor- 
responded with him, seeking advice as to the issue of the Neutrality Proclama- 
tion; see Jay, III, letters of April 9, 11, 1792; also with regard to the necessity 
of a Presidential proclamation as to the Whiskey Insurrection. Jay, III ; Hamil- 
ton, X, letter of Sept. 3, 1792. 



110 THE SUPREME COURT 

should be supposed capable of deciding upon common 
sense and plain language, for such is the treaty." 1 

The Judges of the Supreme Court, however, con- 
fronted with a new and fundamental problem, took time 
to consider whether they should comply with this re- 
quest from the Executive. Finally, on August 8, 1793, 
they replied, declining to give their opinion on these 
questions of law, and stating with great firmness, though 
with due deference : 2 

We have considered the previous question stated in a 
letter written by your direction to us by the Secretary of 
State, on the 18th of last month regarding the lines of sep- 
aration, drawn by the Constitution between the three 
departments of the government. These being in certain 
respects checks upon each other, and our being Judges of 
a Court in the last resort, are considerations which afford 
strong arguments against the propriety of our extra- judi- 

1 National Gazette, July *7, 1793, letter signed "Juba." 

The Connecticut Courant, Aug. 15, \~i'.l~>. quoted B Men York dispatch referring 
to a report that the President had called the Supreme Court in special session to 
advise with him: "The Senate is the Council of the Incentive, as far as respects 
our negotiations with foreign nation-. The President may ask the opinions of 
the Judges on points of law. hut it docs not appear that .my special summons has 
been issued for convening them at this time" 

The Trustees <>f tin- National Sinking Fund, comprising the Vice-President, the 

Secretary of State, the Secretary of the Treasury, the At toiney-( lencral and the 
Chief Justice, aiked from Chief Justice Jay an opinion as t<> the construction of 
the law, and Jay rendered ;i written opinion. March ill. I?!>i. Xrir York Daily 

Advertiser, March !). 17i).'{. 

2 Jan, III, 486; see also Muskrat v. Untied states | i!)?i). 219 V. S. 554. Before 

sending their final reply. Jay and his Associate Judges addressed a preliminary 
letter to President Washington, July 20, as follows: "The question 'whether the 
public may, with propriety, he availed of the advice of the Judges on the question 

alluded to' appears to US to he of much difficulty as well as importance. As it 
affects the Judicial Department! we feel a reluctance to decide it without the ad- 
vice and participation of our absent brethren. The occasion which induced our 
being convened is doubtless urgent ; of the degree of t hat urgency we cannot judge, 
and consequently cannot propose that the answer to this question be postponed 
until the sitting of the Supreme Court. We are not only disposed, but desirous, 
to promote the welfare of our country in every way that may consist with our 
official duties. We are pleased, sir, with every opportunity of manifesting our 
respect for you, and are solicitous to do whatever may be in our power to render 
your administration as easy and agreeable to yourself as it is to our country. If 
circumstances should forbid further delay, we will immediately resume the con- 
sideration of the question and decide it." 



STATE SOVEREIGNTY — NEUTRALITY 111 

cially deciding the questions alluded to, especially as the 
power given by the Constitution to the President, of calling 
on the heads of departments for opinions, seems to have 
been purposely as well as expressly united to the Executive 
departments. We exceedingly regret every event that may 
cause embarrassment to your Administration, but we derive 
consolation from the reflection that your judgment will 
discern what is right, and that your usual prudence, decision 
and firmness will surmount every obstacle to the preserva- 
tion of the rights, peace, and dignity of the United States. 

By the firm stand thus taken at so early a stage in 
the career of the new Government, and by declining 
to express an opinion except in a case duly litigated 
before it, the Court established itself as a purely judi- 
cial body ; and its success in fulfilling its function 
has followed its adhering to this exclusive method of 
deciding questions of law and of constitutionality of 
statutes. k The process is slower, but freer from sus- 
picion of pressure and much less provocative of jeal- 
ousy, than the submission of broad and emergent po- 
litical propositions to a judicial body." l As De Toc- 
queville said, the American Judge "is brought into the 
political arena independently of his own will ; he only 
judges the law because he is obliged to judge a case ; 
the political question which he is called upon to resolve 
is connected with the interest of the parties and he 
cannot refuse to decide it without abdicating the duties 
of his post." Consequently, the decisions of the Court 
on questions involving matters which have become 
the subjects of political controversy are much less 
likely to arouse suspicion and distrust than if the Court 
exercised the power to decide such questions without 
litigation and argument by parties having a direct in- 
terest in the result of the decision. 

1 Popular Government (1885), by Sir Henry Maine, 223; Democracy in America 
(1835), by Alexis de Tocqueville, I, 143 ; The American Judiciary (1905), by Simeon 



112 THE SUPREME COURT 

Before the answer of the Judges had been received, 
Washington's efforts to maintain neutrality had re- 
ceived a further blow by the outcome of another case 
involving the neutrality of the country. While the 
question of the extent of the power of the Federal Ad- 
miralty Courts over French prizes was still unsettled, 
the problem of the effective enforcement of our neu- 
trality in criminal cases in the Federal Courts had 
given the Government even more concern. Prior to 
1794, there were no Federal criminal statutes on the 
subject, and the important questions were presented : 
Could a person who violated the law of nations or the 
provisions of a treaty be punishable criminally in the 
Federal Courts ? Did the common law afford a basis 
for a criminal indictment in these Courts ? These ques- 
tions had been answered affirmatively by Chief Justice 
Jay, as early as May 22, 1793, in a charge to the Grand 
Jury in the Federal Circuit Court at Richmond, and 
by Judge Wilson, July 22, in a charge to the Grand 
Jury in the Federal Circuit Court at Philadelphia. 1 
On July 27, an indictment was found in Philadelphia, 
against one Gideon Ilenfield, charging him with act- 
ing as prizemaster on the Citizen Genet, a French priva- 
teer fitted up and commissioned in the United States 
and attacking and seizing ships of a nation with which 
the United States was at peace, in violation of the laws 
of nations and of the treaties and laws of the United 
States. The case aroused great excitement, for it was 

E. Baldwin, 32-33; The Supreme Court, by George P. Costigan, Yale Law Journ. 
(1907), XVI. Sec also Dcivhurst v. Coulthard, .'J Dallas, M)9. 

1 American Daily Advertiser, July ^>, 26, 1793; General Advertiser, July 26, 1793; 
for account of the case of United States v. Ravara in which the power of the United 
States Courts to try a person indicted for a common law crime was again upheld, 
ibid., July 27, 1793. Even as early as the first Circuit Court held in Massachusetts 
in 1790, Jay had stated to the Grand Jury that "the objects of your inquiry are 
all offences committed against the laws of the United States", and "you will recol- 
lect that the laws of nations make part of the laws of the Nation." Independent 
Chronicle, May 27, 1790. 



STATE SOVEREIGNTY — NEUTRALITY 113 

the first prosecution of an American citizen for aiding 
the French, 1 and the Anti-Federalists were loud in 
their denunciation of the Government. "It is impor- 
tant to have the principle on which Henfield was ar- 
rested developed," said the National Gazette. "If they 
were arrested on the strength of the proclamation, 
the free men of this country have degenerated into 
subjects. This process ... by the Executive author- 
ity .. . involves a question of the first magnitude 
to Americans, and that is, whether they are subjects 
of the United States, or citizens." And again it said : 
"His arrest ... is an infringement of those rights 
which it is presumed every American citizen pos- 
sesses . . ; it has occasioned serious alarm in the 
breasts of the citizens in general, who are without 
the vortex of British influence." It stated that an 
American citizen entering into the service of belligerent 
powers put himself beyond the jurisdiction of the United 
States, and it denied that the English doctrine of 
inalienable allegiance existed in the United States. 2 
"Their papers sounded the alarm," wrote Marshall 
later, "and it was universally asked 'what law had been 
offended and under what statute was the indictment 
supported? Were the American people prepared to 
give to a proclamation the force of a legislative act, 
and to submit themselves to the will of the Executive ? 

1 In reply to a protest by the French Minister, Genet, Jefferson wrote that the 
Henfield matter would be examined "by a jury of his countrymen in the presence 
of Judges of learning and integrity." Jefferson, VII, June 1, 1793. There had 
been a previous arrest of an American citizen, Gideon Olmstead, for serving as an 
officer on a French privateer in violation of the President's Proclamation; and 
he had been bound over for indictment in the District Court in North Carolina 
in July, 1793. Columbian Centinel, July 6, 1793. 

2 See Independent Chronicle, June 13, 20, 1793 ; the New York Daily Advertiser, 
another Anti-Federalist paper, reported, July 29, 1793, that the grand jury had 
indicted "divers persons for having caused sundry vessels in the port of Philadel- 
phia to be armed and equipped in a warlike manner, being an infraction of certain 
treaties and a direct violation of the neutrality of the United States declared by the 
President's Proclamation^ 



114 THE SUPREME COURT 

But if they were already sunk to a state of degradation, 
were they punished when the offense was committed, 
if indeed it could be termed an offense to engage with 
France combating for liberty against the combined 
despots of Europe. ' " * Washington and his Cabinet 
took great interest in the case; Hamilton drafted an 
indictment and aided in the trial; Attorney-General 
Randolph argued the case with the United States At- 
torney William Rawle. For the prisoner, Peter S. Du- 
ponceau, Jared Ingersoll and Thomas Sergeant ap- 
peared. Judge Wilson (with whom Judge Iredell and 
District Judge Peters also sat) charged the jury with 
great positiveness that Henfleld's act, if proved, was 
punishable in the Federal Court under the law of na- 
tions and treaties of the United States, even though 
Congress had enacted no statute making the act a 
crime. "This is a case of first importance," said Judge 
Wilson to the jury. " Upon your verdict the interests of 
four millions of your fellow citizens may be said to de- 
pend. ... As a citizen of the United States, the de- 
fendant was bound to keep the peace in regard to all 
nations with whom we are at peace. This is the law 
of nations," and he pointed out that if citizens could 
take part in the war on one side, they might on both 
sides, and that their friends who stayed behind also 
would not keep the peace, " and so civil war may result." 
In spite of this charge, and the certainty of the evidence, 
the jury acquitted Henfield "amidst the acclamations 
of their fellow citizens." 2 While the result of the pros- 

1 Life of Washington (1807), by John Marshall, II, 273. 

2 "It is said the juryman that opposed the acquittal of Gideon Henfield upon 
his final compliance informed the Bench that he was induced to the verdict because 
he heard threats made out of doors against anyone who should oppose the acquit- 
tal." Massachusetts Mercury, Aug. 9, 1793. The National Gazette said, Aug. 17, 
1793: "The toast of the day in all republican circles at Boston is, 'the virtuous 
and independent jury of Pennsylvania who acquitted Henfield.' ' For account 
of the trial, see General Advertiser, July 30, 31, Aug. 3, 1793 ; American Daily Adver- 
tiser, July 3, Aug. 8, 19, 1793; National Gazette, Aug. 3, 1793; The Diary or 



STATE SOVEREIGNTY — NEUTRALITY 115 

ecution (which they termed Executive persecution) 
was hailed with rejoicing throughout the pro-French 
partisan press, it alarmed President Washington, and 
in view of the ruling by the Court on the law, legisla- 
tion by Congress seemed imperative for the pro- 
tection of the Nation's neutrality. Accordingly, he 
wrote to his Cabinet, August 3, 1793, asking their 
advice as to the advisability of convening Congress 
at an earlier date than its regular session. Objection 
being raised, however, to this course, Washington is- 
sued detailed instructions to collectors of customs, 
through Secretary of the Treasury Hamilton, pre- 
scribing rigid enforcement of neutrality for the future. 
It was just at this crucial period, that the President's 
policy received a third blow, by the decision in the Dis- 
trict Court of the United States in Maryland, in the 
case of Glass v. Sloop Betsy, holding that the Federal 
Admiralty Court had no jurisdiction over French 
prizes. Again the joy of the pro-French partisans was 
unbounded. "The Judge in a very learned and elab- 
orate opinion," said a Baltimore dispatch, "unfolded 
his reasons against the jurisdiction of the Court in a 
manner that, we hope, will leave our allies to the full 
enjoyment of their acquisitions, without further moles- 
tation, under the treaty of amity and commerce." * 
The Government at once took an appeal to the Su- 
preme Court, and there was thus presented to that 

Loudun's Register, Aug. 7, 1793 ; New York Daily Advertiser, Aug. 1, 5, 1793. Judge 
Wilson's charge was published in full in the Independent Chronicle, Aug. 15, 
1793; The Diary or Louduns Register, July 26, 1793, and many other papers. 
In spite of the result in the Henfield Case, the Federal Courts continued to 
indict persons for violations of neutrality, the indictments being based on com- 
mon law and the law of nations. See account of three American citizens taken 
from the French privateer Roland in Boston and held for trial in the Circuit 
Court on charge of "aiding and assisting in manning and fitting out vessels and 
piratically and feloniously capturing the vessels of nations with whom the United 
States are at peace." Connecticut Journal, Sept. 4, 1793. 

1 Independent Chronicle, Sept. 2, 1793. See also New York Daily Advertiser, 
Aug. 23, 1793. 



116 THE SUPREME COURT 

tribunal, in February, 1794, this important question in- 
volving most seriously the attitude of the United States 
towards its international duties and relations. It 
would have been easy for the Court, in view of the 
heated conflict between the British and the French 
factions, to shrink from the responsibility of decision, 
and to hold that the question was purely a political 
one with which the Executive Department alone should 
deal. Such a course, however, it declined to follow ; 
and, by its decision in Glass v. Sloop Betsy, 3 Dallas, 
0, it met the vital question squarely and conclusively. 
The case presented the following facts : a vessel and 
cargo belonging to neutral Swedes and Americans, cap- 
tured by the French and sent into Baltimore for pur- 
pose of adjudication as a prize by the French consul 
there, was libeled by the neutral owners in the United 
States District Court ; and the question at issue was 
whether that Court had jurisdiction to determine the 
legality of capture or to order restitution of a prize 
brought by a belligerent into our ports. The argu- 
ment by Edward Tilghman and John Lewis against 
Peter S. Duponceau lasted for five days, February 8-12, 
1794 ; six days after its close, the Court "informed the 
counsel, that besides the question of jurisdiction as to 
the District Court, another question fairly arose upon 
the record, whether any foreign nation had a right, 
without the positive stipulation of a treaty, to estab- 
lish in this country, an admiralty jurisdiction for taking 
cognizance of prizes captured on the high seas, by its 
subjects or citizens, from its enemies. Though this 
question had not been agitated, the Court deemed it 
of great public importance to be decided ; and mean- 
ing to decide it, they declared a desire to hear it dis- 
cussed." Since the counsel for appellants, however, 
stated that they "did not conceive themselves inter- 



STATE SOVEREIGNTY — NEUTRALITY 117 

ested in the point, and that the French Minister had 
given no instructions for arguing it", the Court at once 
proceeded to render a decision, disposing of both ques- 
tions. It upheld the jurisdiction of the District Court 
to pass upon the legality of prizes brought into our 
ports ; and it made the important announcement that 
"the admiralty jurisdiction which has been exercised 
in the United States by the consuls of France" was not 
warranted and "is not of right." 1 

By this decision, belligerent foreign nations were for- 
mally notified that the legal ownership of prizes brought 
into our ports, the legality of their capture and the 
legal effect of breaches of our neutrality by the cap- 
tors were all matters which might be tested in the 
Courts of the United States and over which those 
Courts had full jurisdiction. No decision of the Court 
ever did more to vindicate our international rights, 
to establish respect amongst other nations for the sover- 
eignty of this country, and to keep the United States 
out of international complications. As was said by 
Timothy Pickering in a letter of January 16, 1797, to 
Pinckney, United States Minister to France, in replying 
to complaints made by the French Minister, Adet, re- 
garding the case of the Betsy and of other captures 
made by illegally armed French privateers, "the most 
effectual means of defeating their unlawful practices 
was the seizure of their prizes when brought within our 
jurisdiction. . . . No examination of such prizes had 
been attempted by our Government or tribunals un- 
less on clear evidence or reasonable presumption that the 
captures were made in circumstances which amounted 
to a violation of our sovereignty and territorial rights. 
. . . No one will find sufficient ground to impeach the 

1 See The Defence, by "Camillus", Neic York Daily Advertiser, Sept. 23, 1795. 
The opinion of the Court was published very fully in most of the Philade!] Ida 
newspapers and in most of the other leading contemporary newspapers. 



118 THE SUPREME COURT 

discernment or integrity of our Courts." * How vital 
to the preservation of peaceful relations this deci- 
sion became was seen during the troublous years from 
1816 to 1826, when the Court had occasion to pass upon 
constant violations of our neutrality in connection with 
the Spanish-American revolutions. 

A rumor at this time that a vacancy was about to 
occur on the Court, to be filled by the appointment of 
Judge Nathaniel Pendleton of Georgia, evoked from 
Washington a letter to Edmund Pendleton which gave 
an interesting description of the President's methods 
in making appointments. After denying the vacancy 
he said: "Whenever one does happen, it is highly 
probable that a geographical arrangement will have 
some attention. . . . Although I do at all times make 
the best inquiries my opportunities afford to come at 
the fittest characters for officers, where mif men knowl- 
edge does not give a decided preference ... no one 
knows my ultimate determination, until the moment 
arrives when the nomination is to be laid before the 
Senate. My resolution not to create an expection 
(sic) which hereafter might embarrass my own conduct 
(by such a commitment to anyone as might subject 
me to the charge of deception) is co-eval with my in- 
auguration, and in no instance have I departed from it. 
The truth is, I never reply to any application for office 
by letters, nor verbally, except to express the forego- 
ing sentiments, lest something might be drawn from a 
civil answer that was not intended." 2 

This February session of 1794 was the last in which 
Jay sat as Chief Justice, for in the succeeding spring, 

1 See 4th Cong., 2d Seas., App., 2713. The cases complained of were Olass 
v. Betsy, Talbot v. J arisen, Gvyrr v. Michael, United States v. Vengeance, The Cas- 
sius (all of which appear in Dallas Reports), and The Privateer General Lanau.r, 
The Hawk, The Caesar and Favorite (which are not reported in Dallas). 

2 Washington Papers MSS, letter of March 17, 1799. 



STATE SOVEREIGNTY — NEUTRALITY 119 

he was appointed by Washington as Special Ambassa- 
dor to England to negotiate a treaty of settlement of 
the controversies then pending. The choice of a mem- 
ber of the Court for such a mission was not received 
favorably by the Senate ; but after a three days' de- 
bate, in the course of which a resolution was offered 
that "to permit Judges of the Supreme Court to hold 
at the same time any other office of employment ema- 
nating from and holden at the pleasure of the Executive 
is contrary to the spirit of the Constitution, and as 
tending to expose them to the influence of the Execu- 
tive, is mischievous and impolitic", the nomination 
was finally confirmed by a vote of 18 to 8, on April 19, 
1794. A letter from Madison to Jefferson illustrates 
the animadversions aroused: 'The appointment of 
(Hamilton) as Envoy Extry was likely to produce such 
a sensation that, to his great mortification, he was 
laid aside and Jay named in his place. The appoint- 
ment of the latter would have been difficult in the Sen- 
ate, but for some adventitious causes. There are 10 
votes against him in one form of the opposition, and 8 
on the direct question. As a resignation of his Judi- 
ciary character might, for anything known to the Sen- 
ate, have been intended to follow his acceptance of 
the Ex. trust, the ground of incompatibility could not 
support the objections, which, since it has appeared 
that such a resignation was no part of the arrange- 
ment, are beginning to be pressed in the newspapers. 
If animadversions are undertaken by skillful hands, 
there is no measure of the Ex. administration, perhaps, 
that will be found more severely vulnerable." The 
opposition to Jay's appointment was due not merely 
to his judicial status, but to his supposed English pro- 
clivities and to his lukewarm views on American rights 
in the navigation of the Mississippi River — a sub- 



120 THE SUPREME COURT 

ject on which the Western Country was deeply aroused. 
" Will you not hear with surprise that John Jay, Chief 
Justice of the United States, has received this appoint- 
ment?" wrote Senator Brown of Kentucky to Jeffer- 
son's friend, Judge Harry Innes of the United States 
District Court. "To you it is unnecessary to remark 
on the objections arising from the Constitution to an 
appointment which blends the functions of the Judi- 
ciary and Executive, or which renders the Judiciary 
dependent upon and subservient to the views of the 
Executive, and which unites in one person offices in- 
compatible with each other. Nor need I observe upon 
his conduct in relation to Mississippi negotiation, or 
inform you that, when Secretary of State under the 
old Government and a Chief Justice under the present, 
he has expressly committed himself in derogation of 
the claim of the United States upon the subject of the 
unexecuted clauses of the Treaty, detention of the 
Western Posts and interest upon British debts. . . . 
This appointment gives room for great discontents, 
especially as his political opinions are adverse to the 
French Revolution and, as supposed by many, to Re- 
publican Government also. All efforts in the Senate 
to defeat the nomination were ineffectual/ ' 'There 
was opposition to the appointment echoed from one 
end of the continent to the other," said an Anti-Fed- 
eralist Congressman in debate, later. 'The example 
was dangerous, it put the Judges under the influence 
of the Executive, and although the prospect of an honor- 
ary appointment within the gift of the President was 
remote, yet it might influence and lessen their inde- 
pendence.' ' And a prominent Federalist also said, 
later: "This was breaking in on a fundamental prin- 
ciple, that is, that you ought to insulate and cut off a 
Judge from all extraneous inducements and expect a- 



STATE SOVEREIGNTY — NEUTRALITY 121 

tions ; never present him the jora of promotion ; for 
no influence is more powerful in the human mind than 
hope — it will, in time, cause some Judges to lay them- 
selves out for presidential favor, and when questions 
of State occur, this will greatly affect the public confi- 
dence in them." l 

Jay himself was not anxious to accept, since the 
work of the Court was now becoming more engross- 
ing, but he finally decided to comply with the Presi- 
dent's wishes and to assume the new task, and accord- 
ingly he sailed from New York soon after the close of 
the Term, in March, 1794. 

At the February Term in 1795, but four cases came 
before the Court. In one, United States v. Judge 
Lawrence, 3 Dallas, 42, the relations of this country 
with France were again involved, when the French 
Vice-consul, acting in reliance on a treaty, demanded 
from United States District Judge Lawrence, a war- 
rant for arrest of the captain of a French frigate who 
had abandoned his ship. 2 Upon failure to obtain the 
warrant, the Vice-consul persuaded the President to 
order the Attorney-General to sue out a mandamus. 
In view of the friction between the two countries at 
this time arising out of the obnoxious behavior of the 
French diplomatic officials in the United States, Presi- 
dent Washington's scrupulous observance of treaty 
provisions was well illustrated in the opening argu- 
ment of Attorney-General Bradford. Acknowledging 

1 Madison, VI, letter of April 28, 1794 ; Harry Innes Papers MSS, letter of John 
Brown, April 18, 1794. See also King, I, 521-522, diary, April 17, 18, 20, 1794 ; 
speech of Calhoun of South Carolina in the debate on the Judiciary Bill in 1802, 
7th Cong., 1st Sess. ; Sketch of the Political Profile of Three Presidents, by Joseph 
Hamilton Daviess (1807), see Quarterly Publication of the Historical and Philo- 
sophical Society of Ohio (1917), XII. See also an attack on the Jay appointment 
as "an express violation of our Constitution." Independent Chronicle, May 25, 
1795, article by "Franklin", No. IX. 

2 As to this case, see especially letter of Attorney-General Bradford to the Sec- 
retary of State, March 21, 1795, Ops. Attys.-Gen., I, 55. 



122 THE SUPREME COURT 

that "the Executive had no inclination to press upon 
the Court any particular construction of the Article 
on which his motion was founded' ', nevertheless, "as 
it is the w T ish of our government to preserve the purest 
faith with all nations, the President could not avoid 
paying the highest respect, and the promptest atten- 
tion to the representation of the Minister of France, 
who conceived that the decision of the District Judge 
involved an infraction of the conventional rights of 
his Republic. . . . The President, therefore, intro- 
duces the question for the consideration of the Court, 
in order to insure a punctual execution of the laws ; 
and, at the same time, to manifest to the world the solici- 
tude of our government to preserve its faith, and to 
cultivate the friendship and respect of other nations." 
The Court, however, held that it had no power "to 
compel a Judge to decide according to the dictates of 
any judgment but his own", and that, irrespective of 
its views as to the proper construction of the treaty, 
mandamus was not a proper remedy in such a case. 
In the other case of importance, Penhallow v. Doanes 
Admrs., 3 Dallas, 54, a question which had been pend- 
ing in the Courts for eighteen years, and which had 
been the source of bitter political conflict, was finally 
settled — the right of the Federal Circuit Court to 
carry into effect decrees of the old Prize Court of Ap- 
peals which existed under the Articles of Confedera- 
tion. The State of New Hampshire had long denied 
the authority of the latter Court ; and the assump- 
tion of jurisdiction by the Circuit Court in this case, 
and its overthrow of long-settled decrees of the State 
Courts, had been hotly resented. Formal resolutions 
of remonstrance had twice been adopted by the New 
Hampshire Legislature, in February, 1794, and Jan- 
uary, 1795, in which violation of State independence 



STATE SOVEREIGNTY — NEUTRALITY 123 

and an unwarrantable encroachment by the United 
States Courts were charged, "annihilating all the power 
of the States, and reducing this extensive and flour- 
ishing country to one domination." 1 The case was 
argued by Attorney-General Bradford and Jared In- 
gersoll against Samuel Dexter, William Tilghman and 
John Lewis, for eleven days (February 6-17). A week 
later, February 24, the Court gave its decision uphold- 
ing the jurisdiction of the Federal tribunals, and thus 
deciding the case in favor of a party against whom the 
Courts of New Hampshire had twice rendered a deci- 
sion. It elicited from a Federalist newspaper in that 
State a heated criticism, in the course of which it spoke 
of the case as involving "the most unjust demands 
that ever disgraced the annals of our Nation . . . 
whereby many gentlemen in this town are become the 
subjects of ruin and distress for supporting the laws of 
their own State. . . . By this decision the sovereignty 
of New Hampshire is completely annihilated, its right 
of legislation controverted, and properties of its sub- 
jects invaded. . . . These are the blessed effects of 
our Federal Courts. Publish it in Gath, publish it 
throughout the United States of America ! Memo- 
rials have been sent to Congress which have been laid 
on the table. Remonstrances have been presented, 
but horribile dictu nothing done !" 2 

1 See State Documents on Federal Relations (1911), by Herman V. Ames. 

2 New Hampshire Gazette, May 26, 1795; see Independent Chronicle, June 1, 
1795; Salem Gazette, May 26, 1795; General Advertiser, June 9, 1795. See also 
New Hampshire Gazette, Sept. 22, 29, 1795, containing a long account of this case 
in which it is said : "The decision of this cause must appear at a future period, if 
not now, most remarkably mysterious and possibly unfathomable," and that the 
Legislature must devise means "to remove the just complaints of its oppressed 
contending jurisdictions." 

Jeremiah Smith wrote to John T. Gilman, Dec. 16, 1795: "That the Federal 
Government is a foreign one, that its administration and its measures are to be 
viewed through the medium of apprehension and jealousy, are sentiments cherished 
by many in high office in some of the States. They are sentiments no less false 
than pernicious." Life of Jeremiah Smith (1845), by John H. Morison. 



CHAPTER THREE 
CHIEF JUSTICES RUTLEDGE AND ELLSWORTH 

1795-1800 

Before the Court convened for its next Term in 
August, 1795, events had occurred which powerfully 
affected its future history. John Jay had concluded 
his noted treaty with England, and had returned to this 
country in order to become a candidate for Governor of 
New York. His return and his candidacy were the 
subjects of an interesting letter addressed to him by his 
associate, Judge Cushing : "What the treaty is has 
not come to us with authenticity ; but whatever it be, 
in its beginning, middle or end, you must expect to be 
mauled by the sons of blunt ness — one of the kinds 
of reward which good men have for their patriotism. 
Peace and American interests are not the objects with 
some." 1 On June 29, 1795, having been elected as 
Governor, Jay had resigned as Chief Justice of the 
United States. 2 Washington, who had been notified 

1 Jay, IV, letter of June 18, 1795. 

2 Washington, XI, letter of Jay, June 29, 1795. "The enclosed contains my 
resignation of the office of Chief Justice. I cannot quit it, without again express- 
ing to you my acknowledgments for the honor you conferred upon me by that 
appointment and for the repeated marks of confidence and attention for which 
I am indebted to you. It gives me pleasure to recollect and reflect on these cir- 
cumstances, to endulge the most sincere wishes for your health and happi- 
ness and to assure you of the perfect respect, esteem and attachment with 
which I am, dear sir, your obliged and affectionate friend and servant." Wash- 
ington replied, July 2, that he received the resignation "with sincere regret. To 
the obliging sentiments you have expressed for me in your private letter which 
accompanied, I sincerely thank you. In whatever line you may walk, my best 
wishes will always accompany you. They will particularly do so on the theatre 
you are about to enter, which I sincerely wish may be as smooth, easy and happy 
as it is honorable." 

James Iredell wrote, July 2: "I am told that he did not send his resignation of 
Chief Justice till two or three days since the Senate broke up. . . . Whatever 



RUTLEDGE AND ELLSWORTH 125 

in advance of Jay's intention, had endeavored to obtain 
acceptance of the position by Alexander Hamilton, 
pointing out to him through a letter written by At- 
torney-General William Bradford, "the immense im- 
portance of confiding that large trust to one who was not 
to be scared by popular clamor or warped by feeble- 
minded prejudices." ! Hamilton, however, declined to 
accept the appointment, having but recently resigned as 
Secretary of the Treasury, and being anxious to renew 
his law practice and political activities in New York. 
Meanwhile, Washington's close friend, James Mc- 
Henry of Baltimore, recommended for any vacancy the 
appointment of Samuel Chase, then Chief Justice of the 
General Court of Maryland. Chase had been one of 
the foremost of the early patriots, "the torch that lighted 
up the Revolutionary flame", and was one of the ablest 
lawyers of the State. He was, however, a man of 
strong passions and prejudices and had been slightly 
implicated in certain contractors' frauds which his 
enemies had greatly exaggerated. McHenry, though 
not an intimate friend of Chase, urged, nevertheless, that 
the recognition of his long, patriotic services would 
have an excellent effect upon the country : 

Among the inducements I feel for presenting his name 
on this occasion is his general conduct since the adoption 
of our government and the sense I entertain of the part he 
bore in the revolutionary efforts of a long and trying crisis. 
You know that his services and abilities were of much use 
to the cause during that period, sometimes by the measures 

were his reasons, I am persuaded it was utterly unjustifiable. The President may, 
himself, make a temporary appointment, but it is not much to be expected, I fear, 
as few gentlemen would accept under the circumstances." William Plumer wrote 
to Jeremiah Smith, June 30, 1795, of Jay's "preeminent virtue" and said that his 
appointment as Governor "removes the complaint against the Administration 
of appointing a man to form a treaty who, from his office of Judge, must afterwards 
expound and execute it. Who will succeed him as Chief Justice in the Court?" 
Plumer Papers MSS. 

1 History of the Republic (1860), by John C. Hamilton, VI, 253. 



126 THE SUPREME COURT 

he proposed or had influence to get adopted, and sometimes 
by the steady opposition he gave to the intrigues raised 
against yourself ; and that if some of his conduct procured 
him enemies, whatever might have been exceptionable in 
it was greatly exaggerated at the moment by the zeal of 
patriotism which makes no allowance for human situations, 
and afterwards by persons who seem to me to have been 
always more intent upon removing obstructions to their 
own advancement than in promoting the public good or 
doing justice to the merits of competitors. Your experience 
has long since enabled you to form a just estimate in such 
cases, and to distinguish between a man's real character and 
the representation made of it during the fermentation of a 
party or by those who, approaching your councils, may 
have a special interest in the continuance of its obscura- 
tion. In this respect, the public has done Mr. Chase justice, 
with the exception of a few men who seem determined to 
pursue him to old age with a rancour, which, in my eyes, no 
political quarrel can excuse or honorable ambition justify. 
In making this allusion, I do not mean, I assure you, Mr. 
Carroll, whose sentiments of Mr. Chase, I have reason to 
think, correspond pretty much with my own, as mine does, I 
am persuaded, with most persons in the State of influence and 
discernment. It is, Sir, after having weighed all these 
circumstances since our conversation respecting him, after 
having reflected upon the good he has done and the good 
that he may still do; after having debated within myself 
whether his political or other errors (which exist no longer) 
have been of such a cast and magnitude as to be a perpet- 
ual bar to his holding any office under the United States, 
after having considered the impressions which an appear- 
ance of neglect is apt to produce in minds constructed like 
his, that I have thought it a duty to mention him as a sub- 
ject of consideration for present or future attention. . . . 
I need not tell you that, to his professional knowledge, he 
subjoins a very valuable stock of political science and in- 
formation, but it may be proper to observe that he has dis- 
charged the office which he fills without the shadow of im- 
putation upon the integrity of his decisions. 1 

1 Washingon Papers MSS, letter of June 14, 1795. This letter has apparently 
never been published. It is to be noted that Chase had already applied to Wash- 



RUTLEDGE AND ELLSWORTH 127 

Before Washington took any further action, however, 
he received an extraordinarily interesting letter from 
John Rutledge of South Carolina, one of his first ap- 
pointees on the Court, who had early resigned to accept 
an appointment as Chief Justice of his State. 1 

Finding that Mr. Jay is elected Governor of New York 
and presuming that he will accept the office, I take 
the liberty of intimating to you privately that, if he 
shall, I have no objection to take the place which he 
holds, if you think me as fit as any other person and have 
not made choice of one to succeed him, in either of which 
cases I could not expect nor would I wish for it. Several 
of my friends were displeased at my accepting the office of 
Associate Judge (altho the senior) of the Supreme Court of 
the United States, conceiving (as I thought, very justly) that 
my pretensions to the office of Chief Justice were at least 
equal to Mr. Jay's in point of law-knowledge, with the addi- 
tional weight of much longer experience and much greater 
practice. I was not, however, so partial to myself as not to 
think that you had very sufficient reason for preferring him to 
any other, tho I certainly would not have taken the commis- 
sion, but for your very friendly and polite letter which ac- 
companied it. When I resigned it, I fully explained to you 
the causes which induced me to accept the office which I now 
hold. This, I discharge with ease to myself and satisfaction 
to my fellow citizens. But when the office of Chief Justice of 
the United States becomes vacant, I feel that the duty which 
I owe to my children should impel me to accept it, if offered, 
tho more arduous and troublesome than my present sta- 
tion, because more respectable and honorable. I have held 
many posts of high rank and great importance and have 
been under the necessity of refusing others ; but they were 
offered spontaneously and handsomely. I have reason to 
believe that I discharged all that I held with fidelity and 
honour. I never sollicited a place, nor do I mean this let- 
ter as an application. It is intended merely to apprise 
you of what I would do if selected, and this I do, on an idea 

ington for an appointment under the Federal Government. See letter of Chase, 
July 19, 1794, in Library of Congress. 

1 Washington Papers MSS, letter of June 12. 1795. 



128 THE SUPREME COURT 

that you may probably have concluded from the resigna- 
tion of my Continental commission that it was my deter- 
mination to remain always at home. I ask pardon for 
taking up so much of your time (which is always precious) 
and will intrude no longer than to request, if an appoint- 
ment has taken place or the nomination of any person only 
settled in your mind, that the contents of this letter may be 
forever unknown (as they are at present) to any but your- 
self and to assure you that, if after reading this letter, you 
shall nominate another in preference to me, circumstances 
can never lessen the respectful and great esteem and vene- 
ration which I have always possessed and always shall have 
for your person and character. That God may long con- 
tinue to preserve in perfect health of mind and body a life 
so inestimable as yours, not only to this country, but I may 
add, to the liberties of mankind in general, is the sincere 
and fervent wish and hope of, dear sir, your sincere and 
affectionate, obliged and obedient servant. 

On receipt of this letter, Washington made an im- 
mediate reply, July 1, stating that it gave him 
"much pleasure" in tendering to Rutledge the ap- 
pointment as Chief Justice, and that he had di- 
rected the Secretary of State to make out his com- 
mission (the Senate having then adjourned) and 

to express to you my wish that it may be convenient and 
agreeable to you to accept it — to intimate in that case my 
desire and the advantages that would attend your being in 
this city the first Monday in August (at which time the 
next session of the Supreme Court will commence) and to 
inform you that your commission as Chief Justice will take 
date on this day (July the first when Mr. Jay's will 
cease) but that it would be detained here, to be presented 
to you on your arrival. I shall only add that the Secretary 
will write to you by post and by a water conveyance also 
if there be any vessel in this harbor which will sail for 
Charleston in a few days. 

The appointment, though an eminently fit one, came 
as a complete surprise to the public and to the Associate 



RUTLEDGE AND ELLSWORTH 129 

Judges of the Court who had apparently assumed that the 
choice of a Chief Justice would be made from among their 
number. 1 "It seems to have been intended merely to 
establish a precedent against the descent of that office 
by seniority and to keep five mouths always gaping for 
one sugar plumb," wrote Thomas Jefferson to James 
Monroe. 2 Shortly before Rutledge's arrival in Phila- 
delphia to attend the August Term of the Court, 
however, facts became known as to his political views 
which completely altered the situation and aroused the 
most bitter and determined opposition to his appoint- 
ment. The Jay Treaty had been ratified by the Senate 
on June 24, and owing to the violent revolt against 
its terms by the anti-British faction in this country, 
support of the treaty was regarded by Washington's 
adherents as the touchstone of true Federalism. 3 
When, therefore, towards the end of July on the arrival 
of Charleston newspapers at the North, the Federalists 
were informed that the new Chief Justice, on July 16, 
before receipt of his appointment, had delivered an 
address violently attacking the Jay Treaty, they were 
surprised and indignant. 4 Their resentment at Rut- 
ledge's action was further increased by the false reports 
as to his speech which were circulated in the Federalist 

1 Marshall, in his Life of Washington (1807), II, 297, wrote of Rutledge as a 
"gentleman of great talents and decision." 

2 Jefferson, VIII, letter of March 2, 1796. 

3 The Jay Treaty was signed, Nov. 19, 1794 ; received by the President, March 
7, 1795 ; received by the Senate when it convened, June 8 ; ratified conditionally, 
June 24 ; published by the Aurora, July 1, from the copy of Senator Stevens Thom- 
son Mason ; signed by the President, Aug. 18. The Senate adjourned, June 26, 1795. 

4 The Massachusetts Mercury, Aug. 4, 1795, stated: "The Charleston papers 
here received mention very positively Judge Rutledge's appointment to the office 
of Chief Justice of the United States. His commission, they say, reached him by 
Post on the 24th inst. (about a week after his warm speech on the demerits of the 
Treaty), but must have left Philadelphia about a fortnight before the City Meet- 
ing took place in Charleston. The Charleston papers also mention that to the 
southward to them the Democrats are burning Mr. Jay in effigy." Rutledge 
sailed from Charleston, July 31, for Baltimore and arrived in Philadelphia, Aug. 
11 ; Massachusetts Spy, Aug. 19, 1795 ; Connecticut Courant, Aug. 17, 1795. 
VOL. I — 5 



130 THE SUPREME COURT 

papers of the North. Though the meeting had been 
held in St. Michael's Church in Charleston and presided 
over by an eminent State Judge, the statement was 
made in a leading partisan paper in Boston (and widely 
copied) that Rutledge had appeared "mounted upon 
the head of a hogshead, haranguing a mob assembled 
to reprobate the treaty and insult the Executive of the 
Union . . . insinuating that Mr. Jay and the Senate were 
fools or knaves, duped by British sophistry or bribed by 
British gold . . . prostituting the dearest rights of 
freemen and laying them at the feet of royalty." Other 
papers said that he had declared "he had rather the 
President should die (dearly as he loved him) than he 
should sign that treaty." ' While the accuracy of 
these quotations was denied by Rutledge's adherents, 
the denial had little effect upon the Federalists, for 
they were determined that no man who opposed the 
treaty should be confirmed in office. 2 Edmund Ran- 
dolph, the Secretary of State, wrote from Philadelphia 
to Washington at Mount Vernon, July 29: 'The 
newspapers present all intelligence which has reached 
me relative to the treaty. Dunlap's of yesterday morn- 
ing conveys the proceedings at Charleston. The con- 
duct of the intended Chief Justice is so extraordinary 
that Mr. Wolcott and Col. Pickering conceive it to be a 
proof of the imputation of insanity. By calculating 
dates, it would seem to have taken place after my letter 
tendering the office to him was received, tho he has not 
acknowledged it." Five days later, Randolph wrote : 
"No answer has been received from Mr. Rutledge ; but 

1 Columbian Centinel, Aug. 26, 1795; Farmer s Weekly Museum, Aug. 11, 1795, 
quoting a Connecticut paper. The Columbian Centinel, Aug. 25, 1795, said : "The 
report of what Mr. Rutledge said on the Treaty is bottomed on the accuracy of 
the Jacobin papers of Charleston." The speech was published in the Charleston 
City Gazette, July 17, 1795. 

2 Lives and Times of the Chief Justices (1858), by Henry Flanders; Lives, Times 
and Judicial Services of the Chief Justices (1854), by George Van Santvoord. 



RUTLEDGE AND ELLSWORTH 131 

the reports of his . . . puerility and extravagances to- 
gether with a variety of indecorums and imprudencies 
multiply.' ' Attorney-General Bradford wrote to Alex- 
ander Hamilton, August 4 : "The crazy speech of Mr. 
Rutledge, joined to certain information that he is daily 
sinking into debility of mind and body, will probably 
prevent him receiving the appointment. . . . But 
should he come to Philadelphia for that purpose, as he 
has been invited to do, and especially if he should resign 
his present office, the embarrassment of the President 
will be extreme ; but if he is disordered in mind and in 
the manner that I am informed he is — there can be 
but one course of prudence." l Timothy Pickering 
wrote to Washington, July 31 : 'The Supreme Court is 
to sit here next week, and perhaps the gentleman named 
for Chief Justice may arrive. Private information, 
as well as publications of his recent conduct, have fixed 
my opinion that the commission intended for him ought 
to be withheld." Oliver Wolcott wrote to Alexander 
Hamilton, July 28: "Everything is conducted in a 
mysterious and strange manner by a certain character 
here, and to my astonishment, I am recently informed 
that Mr. Rutledge has had a tender of the office of 
Chief Justice. By the favor of Heaven, the commission 
is not issued, and now I presume it will not be, but how 
near ruin and disgrace has the country been ! Cannot 
you come and attend the Supreme Court for a few days 
next week ? A bed at my house is at your command." 
Two days later, he wrote of Rutledge as "a driveller and 
fool . " " Many of the warmest advocates for the present 

1 Washington Papers MSS, letters of Randolph, July 29, Aug. 5, 1789, Hamilton 
Papers MSS, letter of Bradford, Aug. 4, 1798; Pickering Papers MSS; letter of 
Pickering of July 31, 1795; letter of Higginson, Aug. 29, 1795; Hamilton (J. C. 
Hamilton's ed.), VI, letters of Wolcott of July 28, 30, 1795 ; see also Administra- 
tion of Washington and Adams (1846), by George Gibbs, I; History of the Republic 
(1860), by John C. Hamilton, VI; New Hampshire Gazette, Aug. 4, 1795. 



132 THE SUPREME COURT 

measures are hurt by Mr. Rutledge's appointment and 
are unable to account for it," wrote Chauncey Good- 
rich, "but impute it to want of information of his hostil- 
ity to the Government, or some hidden cause which 
justified the measure. We shall be loth to find faction 
is to be courted at so great a sacrifice of consistency." 
Oliver Ellsworth (then a Senator, and soon to become 
Rutledge's successor) wrote more temperately to Wol- 
cott, that "if the evil is without remedy, we must, as in 
others, make the best of it." Stephen Higginson 
wrote to Timothy Pickering : "I presume he never will 
receive a commission. It would be an unfortunate 
thing for the public, as well as for himself, since with 
the present public opinion as to his conduct and charac- 
ter, he can never have the confidence of the people, nor 
be confirmed by the President and Senate at the next 
session of Congress." "No man in the habit of thinking 
well, either of Mr. Rutledge's head or heart but must 
have felt at reading the passages of his speech, which 
have been published, pain, surprise and mortification," 
wrote Alexander Hamilton. The sensation which the 
address created testified very strongly to the importance 
which the country attached to Rutledge's opinion ; but 
the Federalist resentment was further increased by the 
false and exaggerated reports which were given wide 
currency in the newspapers. The leading Federalist 
paper, the Columbian Centinel of Boston, published a 
long and virulent attack on Rutledge (which was widely 
republished), stating that he could not pay his debts, 
assailing his private character as well as his political 
views, and lamenting that "though the President's mo- 
tives, however, cannot be questioned ; everyone knows 
and confesses his integrity and zeal to do right, but he can- 
not know every man in the United States and the infor- 
mation he got from others cannot always be relied 



RUTLEDGE AND ELLSWORTH 133 

upon." * On the other hand, a warm defense of Rutledge 
was made by the Salem Gazette, which termed this attack, 
"more licentious than anything which the pen of faction 
has yet produced" ; and a prominent South Carolinian 
wrote to the Centinel that its charges were "audacious 
indecencies and untruths." ... "If there is one man in 
the United States fit for the office of Chief Justice, 
Mr. Rutledge is that man. His legal abilities are gener- 
ally admitted by the learned of the Bar to be without 
superiority in the Union. . . . His integrity is known 
in Charleston and the State. . . . His private moral 
character defies the tongue of calumny." 2 

Meanwhile, amid this storm of objurgation, Rutledge 
had arrived in Philadelphia and, after taking the oath 
of office on August 12, 1795, had assumed his seat upon 
the Court for the Term then just beginning. 3 At this 
session, only two cases were decided. In Talbot v. 
J arisen, 3 Dallas, 133, elaborately argued by Jared 
Ingersoll, Alexander J. Dallas and Peter S. Duponceau 
against Edward Tilghman, John Lewis and Jacob Read 
of South Carolina, the restitution was awarded of a 
prize captured by a French privateer illegally fitted out 
in our ports, and the Court held that no foreign power 
had a legal right to issue commissions in this country. 
The complicated question as to right of National expa- 

1 Letter of "A Real Republican", in Columbian Centinel, Aug. 26, 1795 ; see also 
Connecticut Courant, Sept. 2, 14, 1795. The letter stated that the position of Chief 
Justice is "too important and dignified for a character not very far above medi- 
ocrity. To fill that station with advantage to the public, and with reputation to 
himself, a man must be eminent for his talents and integrity, for a dignified reserve, 
and a deliberate investigation, before he forms, much less avows, an opinion. He 
should be conspicuous for his love of justice in his private dealings and in his offi- 
cial conduct ; for if anything can be discovered in either that suggests even a doubt 
on this point, he must lack the confidence and respect of the people, his usefulness 
and his reputation are gone forever." 

2 Salem Gazette, Sept. 1, 1795 ; Columbian Centinel, Sept. 12, 1795. 

3 Judge James Iredell wrote, August 13: "Mr. Rutledge (my old friend) has 
arrived and yesterday took his seat. . . . Although I lament his intemperate 
expressions with regard to the Treaty, yet altogether no man would have been 
personally more agreeable to me." 



134 THE SUPREME COURT 

triation was considered but not decided; but Judge 
Paterson laid down with much firmness the doctrine 
that, whatever right a man might possess to renounce 
his State citizenship under the provisions of a State 
statute, no State could by legislation effect renunciation 
of United States citizenship ; and he stated with concise 
eloquence the complications of the new system of govern- 
ment, in unfolding which during the subsequent years 
the Court was to play so large a part : " We have sover- 
eignties moving within a sovereignty. Of course there is 
complexity and difficulty in the system, which requires a 
penetrating eye fully to explore, and steady and masterly 
hands to keep in unison and order. A slight collision 
may disturb the harmony of the parts and endanger the 
machinery of the whole." ! In United States v. Richard 
Peters, 3 Dallas, 121, on a motion for a writ of prohibition 
to the United States District Judge in Pennsylvania, to 
restrain him from entertaining a libel against a French 
privateer, The Cassius, the Court again showed how 
clear was its disposition to dispense even-handed 
justice to France, in spite of the bitter attacks launched 
against it by the French sympathizers. Since The 
Ca&sius was an armed vessel owned by the French 
Republic, and not a privateer, the Court held that , even 
though she was illegally fitted out in the United States, 
she could not be libeled in our Courts, and that the 
property of a sovereign and independent nation must 
be held sacred from judicial seizure. 2 

When the Term ended, Rutledge left Philadelphia to 

1 Of the extreme length of argument in this case, Judge Iredell wrote to Simeon 
Baldwin, Aug. 18, 1795: "We have been so incessantly employed in business in 
the Supreme Court that it has been scarcely possible for us to attend to anything 
else. One cause began on the 6th inst. and is not yet ended and one lawyer spoke 
three days." Life and Letters of Simeon Baldwin (1019), by Simeon E. Baldwin. 
It may be noted that the decision was given on August 22, four days after the date 
of Iredell's letter and therefore within four days after the close of argument. 

2 See also Ketland v. The Cassius, 2 Dallas, 3G5. 



RUTLEDGE AND ELLSWORTH 135 

enter upon his Circuit Court duty ; but he was destined 
never to return to the Supreme Court, for the Feder- 
alists were fixed in their determination to punish him. 
Nevertheless, in spite of the protests from his party 
associates, President Washington, knowing the true 
character of the man and magnanimous enough to over- 
look this opposition to his policy by his appointee, 
let it be known that Rutledge's name would be sent to 
the Senate when it met ; and strong efforts were made 
by Rutledge's Federalist friends in the South to secure 
his confirmation. "By the accounts from the North- 
ward, I find that the enemies of the Government are 
making every possible exertion to do mischief," wrote 
Ralph Izard. 'They are in hopes that the Senate will 
not confirm the nomination of Mr. Rutledge as Chief 
Justice, and if so, will immediately raise a clamor and 
endeavor to ascribe the rejection to party. I most 
sincerely hope that the Senate will agree to the nomina- 
tion, and that the Anarchists may be disappointed. . . . 
I am of opinion that no man in the L T nited States would 
execute the office of Chief Justice with more ability and 
integrity than he would. I hope, therefore, you will 
make every possible exertion on the subject with your 
friends in the Senate." 1 The Federalists of the North, 
however, remained unmoved either by Washington's 
wishes or by the arguments of Rutledge's friends. 
"The virtuous motives which have induced the treating 
with regard, men who avow and act upon principles 
inconsistent with the preservation of order, to influence 

1 Charleston Year Book (1886), Appendix, letter of Ralph Izard to Senator Jacob 
Read of South Carolina, Nov. 17, 1795. Izard referred also to Rutledge's mental 
condition as follows : "No man could be more afflicted than I was at the part Mr. 
Rutledge took in opposition to the treaty. I am sure he is now very sorry for it 
himself. After the death of his wife, his mind was frequently so much deranged 
as to be in a great measure deprived of his senses ; and I am persuaded he was in 
that situation when the treaty was under consideration. I have frequently been 
in company with him since his return and find him totally altered." 



136 THE SUPREME COURT 

them to a more just conduct, have been and will be 
ineffectual," wrote Oliver AVolcott. "I hope, there- 
fore, however disagreeable it may be to imply an error 
of judgment in the President in appointing Mr. Rut- 
ledge, that he will not be confirmed in his office." ' 
Moreover, before the Senate convened on December 16, 
1795, another ground for rejection of the nomination 
had arisen, when it became generally known that Rut- 
ledge was suffering from intermittent attacks of mental 
derangement which might interfere with the perform- 
ance of his judicial duties. Referring to this pos- 
sibility, Alexander Hamilton wrote to Rufus King, 
Senator from New York, who had asked advice on the 
question of confirmation : "It is now, and, in certain 
probable events, will still more be of infinite consequence 
that our Judiciary should be well composed, " and he ad- 
vised careful inquiry as to Rutledge's qualifications, 
saying: "The subject is truly a perplexing one; my 
mind has several times fluctuated. If there was noth- 
ing in the case but his imprudent sally upon a certain 
occasion, I should think the reasons for letting him pass 
would outweigh those for opposing his passage. But 
if it be really true that he IS sottish, or that his mind is 
otherwise 1 deranged, or that he has exposed himself 
by improper conduct in pecuniary transactions, the 
bias of my judgment would be to negative. And as 
to the fact, I would satisfy myself by careful inquiry of 
persons of character who may have had an oppor- 
tunity of knowing." 2 

1 Administration of Washington and Adams (1840), by George Gibbs, I, letter of 
Nov. 23, 1795. 

2 Hamilton, X, letter of Dec. 14, 1795. As early as Aug. 4, 1795, Attorney-General 
Bradford had written to Alexander Hamilton that Rutledge's mind was disordered. 
The Farmer's Wrrkh/ Museum, Feb. i, 1706, stated tli.it ;i letter to Philadelphia 
from a gentleman in Charleston, Doc. Ml, 1795. stated thai Hutledgo, <>n 1)<m. tffi. 
attempted to drown himself: "It is laid be baa discovered symptoms <>f derange- 
ment for some weeks past." 



RUTLEDGE AND ELLSWORTH 137 

The excited political situation, however, was such 
that irrespective of Rutledge's mental condition his 
rejection by the Senate was certain, and it was accom- 
plished by a vote of ten to fourteen, as soon as that body 
convened. 1 "This is as it should be," said the Colum- 
bian Centinel, "and what he ought to have expected, 
after the impudent and virulent attack he made on their 
characters. ... The President, having appointed him 
ad interim before he knew of his late proceeding, was 
of necessity obliged to put him in nomination. But 
since it has been known how passionately he ar- 
raigned a measure before he had time to consider, 
or perhaps before he read it, he has been judged 
(all politicks apart) to be a very unfit person for a 
Chief Justice of the United States.'' 2 ki I am pleased 
that the Senate of the United States discovered so much 
firmness," wrote William Plumer to Jeremiah Smith. 
"A man who hastily condemned in a town meeting, in 
such opprobrious terms, a treaty with a foreign nation, 
ought not to preside in the highest judicial Court of 
the Union. . . . The conduct of the Senate will, I hope, 
teach demagogues that the road to preferment in this 
enlightened country is not to revile and calumniate 
government and excite mobs in opposition to their 
measures." Jefferson, on the other hand, wrote to 
William B. Giles: "The rejection of Rutledge by the 
Senate is a bold thing, for they cannot pretend any 
objection to him but his disapprobation of the treaty. 
It is, of course, a declaration that they will receive none 

1 See New York Daily Advertiser, Dec. 19, 1795. The Boston Gazette, Feb. 22, 
1796, published a letter from Philadelphia dated Jan. 9, 1796, stating that: "The 
Georgia Senators have arrived and are chagrined that the appointment of the Chief 
Justice had been submitted when their State was unrepresented. The thing looks 
disrespectful, but may have been accidental." 

2 Columbian Centinel, Dec. 26, 1795 ; Plumer Papers MSS, letter of Plumer to 
Smith, Jan. 1, 1795; Jefferson, VIII, Dec. 31, 1796; Boston Gazette, Feb. 22, 1796, 
quoting letter from Philadelphia of Jan. 9, 1796. 



138 THE SUPREME COURT 

but tories hereafter into any Department of the Govern- 
ment." An interesting view of the situation from the 
Anti-Federalist standpoint appeared in a letter sent to 
Charleston from Philadelphia at this time: "I can 
easily figure to myself your astonishment at hearing the 
Senate had negatived the appointment of the Chief 
Justice. Although he is revered in Carolina by the 
glories of his actions, particularly those which il- 
luminated your political hemisphere during the difficult 
times in which he held the reins of government, yet 
such is the violence of party spirit, the force of stock- 
jobbing influence and the prejudice of our prejudiced 
Anglo-men here that it is regarded as wise in the Senate to 
keep out of office everyone who has spoken disrespect- 
fully of the treaty lately made or Mr. Jay. In the major- 
ity of the Senate are gentlemen who are personally ac- 
quainted with the Chief Justice, intimately acquainted 
with his splendid talents and sound judgment, and who, 
in their conversations out of Senate, do homage to his 
pure patriotism and republican firmness. But the fact 
is, that Mr. Hamilton who manages the Senate, lias 
become a perfect terrorist, and his satellites and votaries 
disseminate with uncommon industry the following 
principle : that it is ruinous to admit into administra- 
tion any man who may refuse to go all lengths with it; 
that our citizens who expressed their disapprobation 
of the commercial treaty are enemies to the general 
government ; that most of them are in the pay of 
France, and the object of their service is the overthrow of 
the Constitution. If your citizens preserve that politi- 
cal honesty they were so rich in when I knew them, 
this sort of doctrine will shock them. They will 
exclaim, what political blasphemy ! What effrontery ! 
But here, where stockjobbers, speculators and Ameri- 
can Anglo-men have duped many of our honest, un- 



RUTLEDGE AND ELLSWORTH 139 

suspecting and many of our timid citizens, it passes as 
orthodox." 

The rejection of Rutledge was an event of great impor- 
tance in American legal history, which has hitherto 
received cursory attention. But for his unfortunate 
Charleston speech he would undoubtedly have been 
confirmed, despite the rumor as to his mental condition. 
As his death did not occur until the year 1800, the 
Chief Justiceship, if held by him, would have become 
vacant at a time when it is extremely unlikely that 
President Adams would have appointed John Marshall 
as his successor. Thus upon the event of one chance 
speech regarding a British treaty hinged the future 
course of American constitutional law. 

Upon the failure of his first nomination, Washington 
offered the position to Patrick Henry, but old age (and a 
possible feeling that he ought to have been appointed 
earlier) led Henry to decline. Washington then named 
Judge William Cushing on January 26, 1796. ! The 
appointment, while an appropriate one, did not meet 
with enthusiastic Federalist approval. "I am dis- 
appointed in the appointment of Cushing as Chief 
Justice," wrote Plumer. "He is a man I love and 
esteem. He once possessed abilities, firmness and other 
qualities requisite for that office, but Time, the enemy 
of man, has much impaired his mental faculties. When 
Jay resigned, Cushing was the eldest Justice, and I fear 
that the promotion will form a precedent for making 

1 Patrick Henry (1891), by William Wirt Henry, II, 563, 564. See also letter 
of Washington to Lee as to Patrick Henry, Aug. 26, 1794, Washington, X. 

It is said that the first intimation Cushing received of the new honor was at a 
diplomatic dinner given by the President, when Washington bowed to him and, 
pointing to a vacant place, said : "The Chief Justice of the United States will please 
take the seat on my right." Lives of the Chief Justices (1854), by George Van 
Santvoord, 277. On Jan. 27, 1796, Timothy Pickering, Secretary of State, 
wrote to Cushing that the President desired "to avail the public of your services 
as Chief Justice." William Cushing, by Arthur P. Rugg, Vale Law Journ. (1920), 
XXX. Cushing's nomination was confirmed by the Senate, Jan. 27, 1796. 



140 THE SUPREME COURT 

Chief Justices from the eldest Judge though the other 
candidates may be much better qualified." dishing, 
however, felt unable to accept, and "with an extraor- 
dinary degree of moderation" (as Iredell wrote) 
declined the position, February 2, without ever taking 
his place as head of the Court. 1 Washington was now 
left in something of a quandary. He would have liked 
to appoint Judge Iredell, for whose ability he had a 
great admiration, but lie could hardly pass over Judge 
Wilson, Iredell's senior on the Bench. Public rumor 
pointed to the promotion of Judge Paterson ; but the 
President solved the problem by deciding to go outside 
the Court and to make an appointment from among 
the members of the Bar, his choice falling upon the 
drafter of the Judiciary Act, Oliver Ellsworth, of 
Connecticut. Ellsworth, at the time ^i' his appointment 
on March S, L796, was fifty-one years old ; he bad been 
a Judge of the highesl Court of his State from 1784 to 
1787. As a stanch Federalist, his appointment, wrote 
Wolcoti to Jonathan Trumbull, "will be very satis- 
factory to all who are willing to be pleased. If our 
country shall be saved from anarchy and confusion, it 
must be by men of his character." Jeremiah Smith of 
New Hampshire wrote : "He is a good man and a very 
able one, a man with whom I am very well acquainted 
and greatly esteem." William Plumer wrote to Smith : 
"] am pleased with the character you give him, and 
rejoice at his appointment. The office is important. 

In that Court, questions of the greatest magnitude, 

not only as regard the National character, but the lives, 

liberty and property of individuals must ultimately be 

1 Phimrr Paprrs M88, letter of Phnner to Smith. Feb. 17. 1796; letter of Tim- 
othy Pickering, Fob. *. 1796, Mom. Hi*. 8oe. Proe., XLTV. Iredell himielf 
Wrote, Peb. *7. 17!MJ: "I am sorry tli.it Mr. dishing refused the office of Chief 
Justice, as I don't know whether a less exceptionable character can be obtained, 
without passing over Mr. Wilson, which would perhaps be a measure that could 
not be easily reconciled to strict propriety." Iredell, II, 460, 462. 



RUTLEDGE AND ELLSWORTH 141 

decided. A good Judiciary is highly useful." ' To 
the Bench, the appointment was evidently not so satis- 
factory ; and Judge Iredell wrote that he thought it 
would cause Judge Wilson to resign. "The kind 
expectations of my friends that I might be appointed 
Chief Justice were too flattering. Whatever other 
chance I might have had, there could have been no 
propriety in passing by Judge Wilson to come at me. 
The gentleman appointed, I believe, will fill the office 
extremely well. He is a man of excellent understanding 
and a man of business." 

Before the Senate had acted on the Rutledge ap- 
pointment, another vacancy on the Court occurred 
through the resignation of John Blair of Virginia in 
the early summer of 17!).5. "Why did Judge Blair re- 
sign?" wrote William Plumer to Jeremiah Smith. 
"From the little acquaintance I have had with him, I 
consider him as a man of good abilities, not indeed a 
Jay, but far superior to Cushing, a man of firmness, 
strict integrity and of great candour, qualities es- 
sentially necessary to constitute a good Judge." 2 
Edmund Randolph who appears to have desired the 
position, 3 and to whom it was apparently offered by the 
President in July, 1795, had finally decided not to ac- 
cept, only a few weeks before his forced resignation as 
Secretary of State owing to the Fauchet letter scandal. 
James Innes, the leader of the Virginia Bar, was strongly 
recommended for the Blair vacancy by John Marshall 
and by Washington's intimate personal friend, Edward 

1 Life of Jeremiah Smith (1845), by John H. Morison, letter of Smith to Samuel 
Smith, March 5, 1796; Plumer Papers MSS, letter of Plumer to Smith, March 
31, 1796; Iredell, II, letter of March 25, 1796. 

Ellsworth was confirmed by the Senate on March 4, 1796, by a vote of twenty- 
one to one. 

2 William Plumer Papers MSS, letter of Feb. 19, 1796. Charles Simms, a lead- 
ing lawyer of Alexandria, Va., was an applicant for appointment in Blair's place; 
see letter of Dec. 25, 1795. Calendar of Applications (1901), by Gaillard Hunt. 

3 Washington Papers MSS, letter to Randolph from Washington, July 7, 1795. 



142 THE SUPREME COURT 

Carrington. Since the President, through these two 
men, had already offered to Innes the position of Secre- 
tary of State and had considered hirn as Attorney- 
General, it was singular that he did not adopt their 
suggestion ; but he wrote on December 23 to Carrington 
that : "It had been expected that the Senate would not 
confirm the appointment of Mr. Rutledge, and so it has 
happened. This induced me to delay the nomination of 
a successor to Mr. Blair, as a vacancy in the Department 
of War is yet unfilled. I am waiting expected information 
to make a general arrangement, or rather, distribution 
of these offices, before I decide upon either separately." 1 
Finally, Washington solved the problem by appoint- 
ing Timothy Pickering of Massachusetts to the office of 
Secretary of State (which he had previously offered 
successively to Judge Paterson, Patrick Henry, James 
Innes of Virginia, Rufus King of New York, and 
Charles C. Pinckney of South Carolina) ; for the office 
of Secretary of War and Navy (which lie had offered to 
Edward Carrington, who declined) he chose James 
McHenry of Maryland; for the position of Attorney- 
General (which he had offered to John Marshall of 
Virginia and for which he had considered Samuel Dexter 
and Christopher (ion 4 of Massachusetts) he chose 
Charles Lee of Virginia; the Chief Justiceship went 
to Oliver Ellsworth of Connecticut ; and for the vacancy 
among the Associate Judges, he chose Samuel Chase 
of Maryland, who was then fifty-five years of age and 
who had been strongly recommended for appointment, 
by McHenry, six months before. 2 McHenry now said 

1 Washington Papers MSS, letter of Washington to Carrington, Dec. 23, 1795. 
See letters of Washington to Carrington, Sept. 28, 17!>"), Carrington to Washing- 
ton, Oct. 28, 30, Nov. 13, 1796, as to [nnes. 

* Washington Paper* M88, letter of McHenry. June 12, 1795; Life and Corre- 
spondence of James McHenry (1907), by Bernard ('. Steiner. 

Chase was nominated on Jan. 2G, 179(1, and confirmed by the Senate on Jan. 
27, at the same time with Cushing as Chief Justice. 



RUTLEDGE AND ELLSWORTH 143 

that Chase would accept and that "he requested uie to 
tell you ' that he receives your intention to nominate him 
to a seat on the Supreme Judicial Bench of the United 
States with the utmost gratitude.' He added 'The 
President shall never have reason to regret the nomina- 
tion', and I believe it. He agrees to be in Philadelphia 
by the first Monday in next month. Thus, Sir, you 
see what you have done. You have made an old 
veteran very proud and happy, and one not very young 
to approach the station you have assigned him with 
fear and trembling ; for who hereafter may hope to 
escape without a wound, whilst there are men to be 
found who could aim poisoned arrows at yourself?" 
A week later, McIIenry wrote that Chase "is extremely 
pleased with his appointment, and I have strong hopes 
that its good effects as it respects the public will extend 
beyond the judicial department. ... I pray you to 
receive him kindly and cordially. " l In view of the 
subsequent career of Chase on the Bench and the fact 
that by his arbitrary actions he became the storm 
center for the Anti-Federalist attack on the Federal 
Judiciary, it must be admitted that McHenry's hopes 
and predilections were unjustified, and that Chase's 
confidence that "the President shall never have reason 
to regret the nomination" was disproved by events. 
There were Federalists in Washington's own circle who 
gravely doubted the wisdom of the nomination. "I 
have but an unworthy opinion of him (Chase)," wrote 
Oliver Wolcott ; William Plumer wrote that the ap- 
pointments of Cushing and Chase "do not encrease the 
respectability and dignity of the Judiciary"; and 
Iredell wrote that: "I have no personal acquaintance 
with Mr. Chase, but am not impressed with a very 
favorable opinion of his moral character, whatever his 

1 Washington Papers MSS, letters of McHenry, Jan. 24, 31, 1796. 



144 THE SUPREME COURT 

professional abilities may be." From the above ex- 
pressions of opinion, it is apparent that the new Judges, 
Chase and Ellsworth, must have come into a Court 
none too enthusiastic to accept them. 

At the February Term of 1796, six cases were heard, 
two of which were of the highest importance. In Ware, 
Adrnr. v. Hylton, 3 Dallas, 199, there was presented the 
great question of vital interest to the relation of the 
States to the Federal Government, whether State laws 
confiscating and sequestrating debts due to a British 
enemy or allowing their payment in depreciated cur- 
rency were valid against the provisions of the treaty 
with Great Britain. Its decision involved the pecu- 
niary fortunes of the States as well as of hundreds of 
American citizens ; in Virginia alone it was estimated 
there were more than $2,000,000 of such British debts. 
Political excitement over the case was intense; and 
in view of the divisions of the country on pro-British and 
pro-French factions a decision in favor of the British 
creditors was likely to strengthen the Anti-Federalist 
party and the opponents of the Administration. As 
Edmund Randolph wrote to Washington: 'The late 
debates concerning British debts have served to kindle 
a wide-spreading flame. The debtors are associated 
with the Anti-Federalists, and they range themselves 
under the standard of Mr. Henry, whose ascendancy 
has risen to an immeasurable height." \ ~ The question 
had been originally argued in Virginia before Judges 
Johnson and Blair, and District Judge Griffin, in 
September, 1791, and again in May, 1793, before Chief 

1 See Patrick Henry (1891), by William Wirt Henry, II, 472, 476, 636. The Con- 
necticut Journal said, Sept. 29, 1794 : "The high-flying Democrats are continually 
'letting the cat out of the bag.' As late as the last month, the Grand Jury of the 
Federal Circuit Court in Virginia presented as a national grievance the recovery 
of debts due to British subjects, contracted prior to the year 1774. Spendall in 
the play says, 'It is a cursed thing to pay debts — it has ruined many a man.' " 
See also Wirt, II, letter to Gilmer, Nov. 2, 1828. 



RUTLEDGE AND ELLSWORTH 145 

Justice Jay and Judges Iredell and Griffin. 1 Amongst 
the counsel appearing for the British creditors had 
been the then leader of the Virginia Bar, John Wickham, 
and for the State and the debtors, the aged Patrick 
Henry. In the Supreme Court, Edward Tilghman, 
Alexander Willcocks, and William Lewis of Philadelphia 
appeared for the creditors against John Marshall and 
Alexander Campbell; and it is interesting to note that 
Marshall, in arguing against the binding force of the 
treaty over the State legislation, referred to "those 
who wish to impair the sovereignty of Virginia", thus 
employing the very phrase which the ardent State- 
Rights adherents used so frequently in after years in 
attacking his own decisions as Chief Justice. Of 
Marshall's argument (his only one in the Court) William 
Wirt, who was present, wrote : "Marshall spoke as he 
always does, to the judgment merely, and for the sim- 
ple purpose of convincing. Marshall was justly pro- 
nounced one of the greatest men of the country. He 
was followed by crowds, looked upon and courted 

1 In the General Advertiser, June 15, 1793, a letter from Richmond, dated June 
7, said: "The Federal Judges have this day delivered their opinions upon the 
great question of British debts which was unanimous for the payment. Griffin 
and Iredell were for substituting the payments of paper money into the Treasury ; 
Jay was of a contrary opinion, and the latter gave one of the most able opinions I 
ever heard delivered — and to disinterested persons the most satisfactory and 
conclusive." In the National Gazette, July 3, 1793, a letter from Richmond said 
that the town "is full of patriots, and no enemy to the French Revolution among 
them dares to open his mouth to vent his pestiferous principles. Judges Jay and 
Iredell have finished the discussion on the payment of the old British debts in favour 
of the British." In An Address to the People of the United States with an Epitome 
and Vindication of the Public Life and Character of Thomas Jefferson (Worcester, 
Mass., 1802), an account is given of trials in the Federal Court of a case brought 
by British creditors against Thomas Jefferson as executor of the estate of a Mr. 
Wayles, and in which General John Marshall and Bushrod Washington appeared 
for the executors. In this account, it is stated that Jefferson's right to the payment 
of the debt into the Virginia State Treasury under the Virginia statute "was so 
well founded that it received the sanction of a Circuit Court ; and although that 
decision was afterwards reversed by the Supreme Court, everybody who attended 
on the Court will recollect that impressive argument of Mr. Marshall ... in sup- 
port of the decision of the Circuit Court and it will remain a doubt whether it 
ought not to have been affirmed." 



146 THE SUPREME COURT 

with every evidence of admiration and respect for the 
great powers of his mind. Campbell w^s neglected 
and slighted and came home in disgust. ' Marshall's 
maxim seems always to have been 'Aim exclusively at 
strength.' Of his reception and first acquaintance 
in Philadelphia, on this initial appearance before the 
Court, Marshall himself wrote: "I then became ac- 
quainted with Mr. (George) Cabot, Mr. (Fisher) Ames, 
Mr. (Samuel) Dexter, Mr. Sedgwick of Massachusetts, 
Mr. (Jeremiah) Wadsworth of Connecticut, Mr. (Rufus) 
King of New York. I was delighted with these 
gentlemen. The particular subject (the British Treaty) 
which introduced me to their notice, was at that time so 
interesting, and a Virginian who supported with any 
sort of reputation the measures of the government was 
such a rara avis, that I was received by them all with a 
degree of kindness which I had not anticipated." 1 
While the Court was gravely impressed with "the 
uncommon magnitude of the subject, its novelty, the 
high expectation it has excited and the consequences 
with which a decision may be attended" (in the words 
of Judge Iredell), it found little difficulty in reaching a 
conclusion ; and within two weeks after the argument, 
four Judges then sitting (Paterson, Cushing, Wilson 
and Chase) concurred in declaring that the British 
treaty provisions must prevail over any State laws, 
that the British creditors were entitled to recover, and 
in general that a treaty so far as it is compatible with 
the Constitution supersedes all State laws which dero- 
gate from its provisions. Thus was settled forever 
one of the fundamental doctrines of American law. On 
the day after the decision of this momentous case, 
the Court rendered its opinion in a case of even greater 
import in the history of the law, Hylton v. United States, 

1 See Oration of William Henry Rawle, May 10, 1884, 112 U. S. App. 753. 



RUTLEDGE AND ELLSWORTH 147 

3 Dallas, 171, in which for the first time it exercised 
its function of passing upon the constitutionality of an 
Act of Congress. It is a most singular circumstance 
that a case of such consequence, involving the question 
whether a Federal tax on carriages was a direct tax 
within the meaning of the Constitution, should have 
been presented on an agreed statement the facts in 
which were fictitious, should have been actually a moot 
case since the counsel on both sides were paid by the 
Government, and should have been decided by only 
three of the six Judges ; yet all these features were 
present in the case. The defendant Hylton formally 
stated that "my object in contesting the law upon 
which the cause depends" is "merely to ascertain a 
constitutional point and not by any means to delay the 
payment of a public duty." ! The Government in its 
agreed facts made the fictitious allegation that the 
defendant kept one hundred and twenty-five chariots 
"exclusively for the defendants' own private use and 
not to let out to hire." And the Government entered 
into a formal stipulation to pay the counsel fees on both 
sides for the argument in the Court, since, as Attorney- 
General Bradford wrote to Hamilton, the appellant's 
counsel had advised him "to make no further argument 
and to let the Supreme Court do as they please, and 
that in consequence of this advice no counsel will ap- 
pear in support of the writ of error. Having succeeded 
in dividing the opinion of the Circuit Court, he wishes 
to prevent the effect which a decision of the Supreme 

1 This formal statement by Hylton does not appear in Dallas Reports but is on 
the files of the Court. 7th Cong., 1st Sess. The fictitious allegation in the agreed 
facts was undoubtedly to give jurisdiction to the Circuit Court in the sum of $2000, 
the tax and penalty for one chariot being only $16, and the agreed facts reciting 
that: "If the Court adjudged the defendant to be liable to pay the tax and fine 
for not doing so and for not entering the carriages, then judgment shall be entered 
for the plaintiff for $2000 to be discharged by the payment of sixteen dollars, the 
amount of the duty and penalty." 



148 THE SUPREME COURT 

Court on full argument would have, and perhaps by the 
circulation of his pamphlet in the meantime to in- 
dispose the people of Virginia to paying the next annual 
duty on their carriages." l The argument was made 
by Charles Lee, Bradford's successor as Attorney- 
General, and by Hamilton as special counsel for the 
Government, and by Alexander Campbell of Virginia 
and Jared Ingersoll of Pennsylvania for Hylton. 
Hamilton's appearance before the Court for the first 
time (his retirement from the post of Secretary of the 
Treasury having only recently taken place) was the 
object of much public interest. "Mr. Hamilton spoke 
in our Court, attended by the most crowded audience I 
ever saw there, both Houses of Congress being almost 
deserted on the occasion," wrote Judge Iredell. 
"Though he was in ill health, lie spoke with astonishing 
ability, and in a most pleasing manner, and was listened 
to with the prof oundest attention." A contemporary 
newspaper account stated thai "the whole of his argu- 
ment was clear, impressive and classical. The audience, 
which was very numerous and among whom were many 
foreigners of distinction and many of the Members of 
Congress, testified the effect produced by the talents 
of this great orator and statesman." On the other 
hand, Madison in writing to Jefferson made a slight- 
ing comment upon Hamilton's argument : 'The Court 

has not given judgment yet on the carriage tax. It is 

said the Judges will he unanimous tor its constitution- 

1 The Intimate IJjr of Alexander Hamilton (1911), by Allan M« Lane Hamilton, 

letter of Bradford to Hamilton, Aug. I, 17:>.">; §ee Hamilton Paper* M88 for the 

letter in full, and for letter of Wolootl to Hamilton. Jan. 15, L796, requesting his 

attendance at the OOmffig argument of I lie case. See also Amrr. Staff l y aj>irs, \J 

I, :{!):}, in which in a report of the Secretary ««f the Treasury to Congress, March 
24, 1801. it is said as to this case : " In order t<> obtain a final decision on thai ques- 
tion, a case was agreed with the defendant in the Circuit Court, on which an appeal 

was made to the Supreme Court. The condition of that agreement was that the 
United States should pay all the expenses incident to the appeal." Campbell and 
Ingersoll were paid |288.89 each and Hamilton *.*><)(). 






RUTLEDGE AND ELLSWORTH 149 

ality. Hamilton and Lee advocated it at the Bar 
against Campbell and Ingersoll. Bystanders speak 
highly of Campbell's argument, as well as of IngersolPs. 
Lee did not shine, and the great effort of his coadjutor, 
as I learn, was to raise a fog around the subject, and to 
inculcate a respect for the Court for preceding sanctions 
in a doubtful case." ! Eleven days after the argument, 
the Court, on March 8, 1796, rendered its decision 
interpreting the meaning of the words "direct tax" 
as used in the Constitution and upholding the validity 
of the Act of Congress imposing the carriage tax. Since 
the new Chief Justice, Oliver Ellsworth, had just been 
sworn into office that day, he took no part in the deci- 
sion; and therefore this great constitutional case 
was decided by three of the six Judges — Iredell, 
Paterson and the new Judge, Samuel Chase (who had 
taken his seat for the first time, February 4); Judge 
Wilson, having sat in the Court below, gave no opinion; 
and Judge ( lushing had been ill at llie argument. 

The August Term of 170(1 presented to the new Chief 
Justice a large number of prize and admiralty cases 
with which he was particularly well fitted to deal, 
since, twenty years before, lie had been a member of the 
Committee of Appeals of the Continental Congress 
which was the appellate tribunal in such matters. 2 
In the very first case which came before Ellsworth, 
United States v. La Vengeance, 3 Dallas, 297, the Court 

1 Iredell, II, 461, letter of Feb. 26, 1796; Madison (1865), II, letter of March 6, 
1796. The Columbian Ccntincl (Boston) said, March 9, 1796, that Mr. 
Hamilton "by his eloquence, candour and law knowledge has drawn applause from 
many who had been in the habit of reviling him." 

Judge Story later said: "I have heard Samuel Dexter, John Marshall, and 
Chancellor Livingston say that Hamilton's reach of thought was so far beyond 
theirs that by his side they were schoolboys — rush tapers before the sun at noon 
day." Life of Rutherford Birehurd Hayes (1914), by Charles R. Williams I, diary, 
June 12, 1844. 

2 Ellsworth's first Federal judicial service was in the Circuit Court in Georgia, 
his charge to the Grand Jury in which, April 25, 1796, appears in Lives and Times 
of the Chief Justices (1858), by Henry Flanders, II, 189. 



150 THE SUPREME COURT 

rendered a notable opinion which, in subsequent years, 
served as the basis for the broad extension of Federal 
admiralty jurisdiction to inland navigable rivers, to 
the Great Lakes, and elsewhere off the high seas. The 
case involved a libel of a vessel for unlawfully exporting 
arms from Sandy Hook in New Jersey to French domin- 
ions. It was contended by Charles Lee in his argu- 
ment against Peter S. Duponceau, that the English com- 
mon law should prevail and that an act committed not 
wholly on the high seas but partly within the confines of 
a State should be held not to be within admiralty juris- 
diction. The Court decided to the contrary ; and 
though the decision was a bold one in its assertion of 
Federal authority and has been frequently attacked, it 
has been steadily adhered to as one of the fundamental 
decisions of American law. 1 In another admiralty 
case, the fairness with which, in spite of the political 
prejudices rife at that time, the Court was deter- 
mined to treat foreign powers was illustrated in Moodie 
v. Ship Phoebe Anne, 3 Dallas, 319. A French privateer, 
driven by storm into a United States port and having 
made repairs there, was libeled for breach of our 
neutrality; and counsel argued "the impolicy and 
inconveniency of suffering privateers to equip in our 
ports." Ellsworth, however, in deciding in favor of 
France said that: "Suggestions of policy and con- 
veniency cannot be considered in the judicial determina- 
tion of a question of right ; the treaty with France, 

1 Kent Com., I, 376. Judge Woodbury, dissenting in Waring v. Clark, 5 How. 
441, said the decision was "the parent of mistaken references." Kent said that 
the case was not "sufficiently considered." Charles Lee, arguing in 1808 in U. S. 
v. Schooner Betsy, 4 Cranch, 446, note, said : "I argued the case of the Vengeance 
and I know it was not so fully argued as it might have been; and some of the 
Judges may recollect that it was rather a sudden decision," to which Judge Chase 
tartly replied : "I recollect that the argument was no great thing, but the Court 
took time and considered the case well." See also Amer. State Papers, For. Rel., 
I, 588, 628, letters of Adet to Pickering, Nov. 15, 1796, Harrison to Pickering, 
Dec. 12, 1796. 



RUTLEDGE AND ELLSWORTH 151 

whatever that is, must have its effect. By the 19th 
Article, it is declared that French vessels . . . may, on 
any urgent necessity, enter our ports, and be supplied 
with all things needful for repairs. In the present case, 
the privateer only underwent a repair; and the mere 
replacement of her force cannot be a material augmenta- 
tion ; even if an augmentation of force could be deemed 
(which we do not decide) a sufficient cause for restitu- 
tion." 1 One further noted case was on the docket 
for argument at this Term ; but, fortunately for the 
stability of the young Government, it was continued. 
This was the case of Hunter v. Fairfax's Devisee, 
3 Dallas, 305, which involved the bitterly fought 
questions of the right of an alien to take land in Virginia 
by devise and the right of Virginia to confiscate alien- 
enemy land. Its decision, twenty years later, produced 
a direct conflict between the State and the United 
States Judiciary, and had it been decided in 1796, 
when the Federal Government was weakened by bitter 
factional dissension, a similar conflict might have had 
serious results. The immediate subject of the suit was 
788 acres of land, which had been confiscated by Vir- 
ginia and granted to David Hunter, but its decision 
would affect the title to about 300,000 acres previously 
owned by the late Lord Fairfax. The lower Court 
having decided against Hunter, an appeal had been 
taken to the United States Supreme Court, and Hunter 
wrote to Alexander Hamilton, July 7, 1796, asking him 
to appear as counsel and offering him a fee of $400, to 

1 The case of Jones v. LeTombe, 3 Dallas, 384, may be noted as one of the few 
actions ever brought originally in the Supreme Court, under the clause of the Con- 
stitution giving to that Court original jurisdiction in cases involving "ambassadors, 
other public ministers, and consuls." It was a "capias in case" against the French 
Consul-General . A rule was issued to the plaintiff to show his cause of action; 
and the plaintiff producing his paper and affidavit, it appeared that the suit was 
against the French Government and the rule was made absolute. See opinion 
of Attorney-General Lee, Nov. 21, 1797, Ops. Attys.-Qen., I, 77. 



152 THE SUPREME COURT 

be made up to $1000 if successful, or in substitution the 
"fee of the land worth about $2000." x In his letter, 
he stated that the Governor of Virginia had directed the 
appeal to be entered and to be prosecuted at the expense 
of the State but that the Legislature had declined to 
authorize the expense, consequently he was forced to 
prosecute it himself. "Mr. (John) Marshall of this 
State and the Attorney General of the United States, 
Mr. (Charles) Lee will argue the cause on behalf of 
Fairfax. Several reasons induce me to wish a postpone- 
ment of this trial until the February Term. If this can 
be obtained, it is probable that the Legislature of this 
State and perhaps some others will see the propriety of 
defending themselves against the claims of the late 
proprietors and their representatives. I believe there 
can be no doubt but that several of the States who were 
subject to proprietary grants will find themselves in as 
great danger from their clamor as this State IS from the 
claim of Denny Fairfax for the Northern Neck. At 
least 150,000 pounds has been paid into the Treasury 

for vacant lands in the Northern Neck." 2 Hamilton 

declined to take the case, writing: "It not being my 
genera] plan to practice in the Supreme Court of the 
United States"; and on July 19, Hunter's counsel in 
Virginia, Alexander Campbell, died. Accordingly, Hun- 
ter addressed a letter to the Court, asking for postpone- 
ment. After argument in opposition by Lee and Jared 

Ingersoll, the Court continued the case, stating that 

1 Hamilton Capers M88, letter of July 7, 1700; this letter has never been pub- 
lished. 

2 See also Marshal}, II. 806-107 : History of the Supreme Court nf (he f'nited States 

(1912), by Gnstavtu Mycr\ ^.'57-240. Among other States similarly affected vrai 
North Carolina, where Liter the ease of QntwUU v. Danes in the Federal Circuit 
Court in 180.") involved mnewhal the tame iamei. The QronvitU Estate and North 

Carolina, by Henry (I. Connor, C of /'. Law Her. (1914), LXII ; see alao Jefferson 

Papers Mss. letter t<> Bldridge Rolfe, March 4, 1808; James Spmnt Hist. Ifono- 

<jraph No. .{, letters of John Steele to Nathaniel Macon, April. ISO.'}, and Macon 
to Steele, June 11, 1803; American Daily Advertiser, April 7, 1809. 



RUTLEDGE AND ELLSWORTH 153 

it was a cause of such magnitude that counsel should 
have an opportunity to investigate the principles and 
consider the authorities. "It is a matter of great 
moment," said Judge Chase, "and ought to be deliber- 
ately and finally settled." In this way, a subject 
productive of excited controversy disappeared from 
the Court's docket for nearly twenty years. 

At the February and August Terms in 1797, eight 
cases were decided, none of which were of great im- 
portance. The Terms in 1798 were equally barren. 

On August 21, 1798, Judge AYilson, whose health had 
been bad for the past two years, and who had been over- 
whelmed by serious financial troubles, died at the early 
age of fifty-six. He had been a profound lawyer and 
a great Judge, and as Judge [redell wrote in 1794, his 
"affability and politeness gave great satisfaction to 
both thr Bar and I he people." His end amidst such 
misfortune was, therefore, peculiarly sad. To succeed 
Wilson, five men were mentioned Jacob Rush, 1 
Samuel Sitgreaves, and Richard Peters (United States 
Districl Judge) of Pennsylvania, and Bushrod Wash- 
ington and John Marshall of Virginia. Rush withdrew 
his name; Sitgreaves was too inexperienced; Peters 
would not accept the appointment even if offered, 
owing to the inadequacy of the salary and the onerous 
Circuit Court duties imposed upon Supreme Court 
Judges. Marshall, while not as eminent at the Bar as 
several other lawyers of Virginia, had just returned 
from his mission with Pinckney and Gerry in France, 
and was now highly popular with the American people 
as a result of the revelation of the mysterious X. Y. Z. 
correspondence. Washington, who had studied law 

1 Rush was born in 1747, a graduate of Princeton in 1765 and of the Middle 
Temple in London in 1771, a Judge of The Supreme Court of Pennsylvania in 1784, 
President of the Third Circuit in 1791. See Jacob Rush and the Early Pennsylvania 
State Judiciary, by Louis Richards, Penn. Bar Ass. (1914), XX. 



154 THE SUPREME COURT 

in Judge Wilson's office, though only thirty-six years 
of age, had already acquired a reputation as a profound 
lawyer and was recommended for the position by 
Attorney-General Lee. As Virginia had had no repre- 
sentative on the Court since Blair's resignation in 1795, 
President Adams determined that the appointment 
should go to that State, but he apparently thought that 
there was very little choice between the two candidates ; 
for he wrote to Secretary of State Pickering: "The 
reasons urged by Judge Iredell for an early appointment 
of a successor [to Wilson] are important. I am ready to 
appoint either General Marshall or Bushrod Wash- 
ington. The former I suppose ought to have the pref- 
erence. If you think so, send him a commission. If 
you think any other person more proper, please to 
mention him." ] Pickering, in his reply giving his 
view of the possible candidates, wrote somewhat whim- 
sically of "B. Washington, a name thai I have never 
heard mentioned but with respect for his talents, 
virtues and genuine patriotism. But he is young, not 
more, I believe, than three or four and thirty. His 
indefatigable pursuit of knowledge and the business of 
his profession has deprived him of the sight of one eye; 
it will he happy if the loss does not make him perfectly 
the emblem of justice.' 1 To this Adams answered, 
September 26, that: 'The name, the connections, the 
character, the merit and abilities of Mr. Washington 

1 Pickering Papers M88, :H7. letten of Pickering to Dr. Benjamin Rush, Sept 
19, 1798, to John Adams. Sept *o. i7<)s. letter of Adam* to Pickering, Sept IS, 
170S, in Library <>f Congress; Works of John Adams, VIII, 597. 

Pickering wrote to George Cabot, Nov. 10, L7W "The President's nub 

opinion of Gen. Marshall, I cannot Withhold from you. It is given in ■ letter of 

Sept. 26 (as follows) : . . . The only candidate! aboul whom there appeared am 

competition in the President'i mind were Buahrod Washington and John Marshall. 
I gave to the President reasons why Marshall would decline the office. The Pres- 
ident in his answer said he could not blame him if he should decline. Washing- 
ton was the alternative. ... I hope Marshall can get into politics. . . . He will 
assuredly act with the intelligent New England men." Life and Letters of | 
Cabot (1877), by Henry Cabot Lodge. 




RUTLEDGE AND ELLSWORTH 155 

are greatly respected, but I still think that General 
Marshall ought to be preferred. Of the three envoys, 
the conduct of Marshall alone has been entirely satis- 
factory and ought to be marked by the most decided 
approbation of the public. He has raised the American 
people in their own esteem. And if the influence of 
Truth and Justice, Reason and Argument is not lost 
in Europe, he has raised the consideration of the United 
States in that quarter of the world. . . . He is older 
at the Bar than Mr. Washington, and I know by experi- 
ence that seniority at the Bar is nearly as much regarded 
as in the army." Accordingly, the appointment was 
tendered to Marshall bul was declined by him, and 
Pickering in forwarding the letter of refusal to the 
President wrote: "I transmit the letter, as well that 
his own grateful sense of the offer might be seen, as for 
the strong expression of the opinion of so good a judge 
on the fitness of conferring the office on Mr. Washington 
whose talents and character are so perfectly well known 
to him." Thereupon, President Adams directed that 
the vacancy be filled by the appointment of Bushrod 
Washington, and tin* commission was sent to him, 
October 0, 1798 (a recommission being made on Decem- 
ber 20, after the Senate convened). 1 

At each of the two Terms in 1799 but four cases were 
decided, no one of which was of marked interest, though 
New York v. Connecticut, 4 Dallas, 1 , may be noted as the 
first instance of a suit by one State against another. 2 

1 Pickering Papers MSS, XXXVII, 338, letter of Timothy Pickering to John 
Adams, Oct. 5, 1798, letter of Pickering to B. Washington, Oct. 6, 1798, stating 
that "the President of the United States being desirous of availing the public of 
your services as one of the Associate Justices." 

2 See Connectieut-Nciv York Boundary Line, by Simeon E. Baldwin, New Haven 
Colony Hist. Soc. Proc. (1882), III. See resolution introduced into Congress by 
Livingston of New York, Feb. 15, 1798, "that provision ought to be made by law 
allowing the trial of all cases, in which one or more States may be interested in 
such suit or suits. 5th Cong., 1st Sess., 1035, 1207. The method of beginning suit 
against a State had been established as early as 1790 in Grayson v. Virginia, 3 



156 THE SUPREME COURT 

Judge Iredell died on October 2, and President Adams 
appointed in his place, on December 6, 1799, Alfred 
Moore of North Carolina. Moore was forty-four years 
old, had been Attorney-General of the State for five 
years, and was a Judge of its Supreme Court. 

At its February Term in 1800, the Court decided 
seven cases of slight historical importance. 

The last Term in which the Court sat in the city of 
Philadelphia was held in August, 1800, and under great 
difficulties ; for on August 4, when the session should 
have begun, only Judges Paterson, Moore and Washing- 
ton were present ; Chief Justice Ellsworth, who had 
been appointed Envoy to France by President Adams, 
February 25, 1799, was in Europe ; Judge Cushing was 
ill ; and Judge Chase was in Maryland, engaged in 
electioneering for Adams in the pending Presidential 
campaign. 1 That the Court could no longer rely on 
freedom from political criticism now became manifest, 
when two cases were presented to it involving decisions 
on questions which had become political issues. In Bas 
v. Tingy, 4 Dallas, 37, the Court was confronted with 
serious questions arising out of the French spoliations 
on American commerce and the American retaliatory 
legislation of the past two years. The Federalists had 
insisted that a state of actual war with France existed, 

Dallas, 320; thai service of process should be made on the Governor and Attorney- 
General ; thai subpoenal w hen issued .should be served sixty days before return day ; 

and that on a failure of a State to appear, the complainant might proceed rx parte. 
BighteeD years later, in December, ISIS, a l>ill was introduced in Congress pre- 
scribing the mode of commencing, prosecuting, and deciding controversies between 
two or more States; "but after debate, it was indefinitely postponed." l~>th 
Cong., ZdSess., 74, 120. 

1 Judge Chase's absence drew upon him a savage attack from the Anti-Federalist 
newspapers — an attack which, on the standards of today, would appear to be 
partially justified — for he was speaking at political gatherings in Maryland in 
behalf of Adams' candidacy for the Presidency. See the Aurora, Aug. 4, 8, 9, 11, 
1800, which referred to "the Supreme Court adjourning from day to day and t he 
business of the Nation being held up until Chase shall have disgorged himself. 
O Tempora, O Mores ! . . . The suspension of the business of the highest Court 
of Judicature in the United States to allow a Chief Justice to add nine thousand 



RUTLEDGE AND ELLSWORTH 157 

and that all measures taken against the French were 
thus to be justified. The Anti-Federalists, French 
partisans, had stoutly denied this. An intense state 
of feeling existed on both sides. The Court was now 
called on to decide whether France was an "enemy" 
within the meaning of the statute of 1799, providing for 
salvage for ships "retaken from the enemy within 
twenty -four hours." The Court held that a state of 
"limited, partial war ' existed, thus sustaining the 
contention of the Federalist party, who hailed the 
decision with applause. The Anti-Federalists on the 
other hand did not hesitate to express their hostility 
to the Court's pronouncement ; and for the first time 
in the history of the Government, there was uttered a 
suggestion that a Judge should be impeached for render- 
ing a judicial decision, when the Aurora stated that the 
decision was "most important and momentous to the 
country, and in our opinion every Judge who asserted 
we were in a state of war, contrary to the rights of 
Congress to declare it, ought to be impeached." l In the 
other important case of this Term, Talbot v. Ship 
Amelia, 4 Dallas, 34, the Court was confronted with 
the necessity of deciding a question of the most delicate 
and explosive nature at that period, namely, whether 
an American citizen possessed an inherent or legal right 
to expatriate himself and to become a citizen of France. 2 
A decision by Chief Justice Ellsworth sitting in the 
Circuit Court, the previous year, holding adversely to 
such right and basing his decision on English common 
law had aroused intense antagonism. It was with relief, 
therefore, that the Court now took advantage of the 

dollars to his salary and to permit Chase to make electioneering harangues in favor 
of Mr. Adams is a mere bagatelle !" 

1 Aurora, Aug. 22, 23, 25, 1800. 

2 "A cause of very great importance both on account of the legal principles appli- 
cable to neutral commerce and the magnitude of the pecuniary interest involved 
in the event, being no less than $180,000." American Daily Advertiser, Aug. 18, 1800. 



158 THE SUPREME COURT 

absence of the Chief Justice and of Judge dishing, and 
(as stated in the newspapers), "this being a cause of 
the first impression, ordered it to be continued for the 
purpose of hearing a further argument before a fuller 
Court." l 

With the close of this Term, the last to be held in 
Philadelphia, there came to an end a distinct period in 
the Court's history. 2 For eleven years it had existed, 
formulating with comparatively little criticism the 
general principles of judicial procedure and of interna- 
tional and constitutional law on which its subsequent 
career was to be based. Thus far, it had been singularly 
free from hostile attack ; but a great change in the 
attitude of the public towards the Court was now im- 
pending. The increasing rancors due to the existence 
of the British and French factions in this country and 
to the somewhat immoderate legislation of President 
Adams' Administration had aroused a furious spirit of 
partisanship. Into this boiling political caldron, the 
Court had been drawn during the past two years, by 
reason of the fact that all the 4 delicate questions on which 
the Federalist and the Anti-Federalist parties were 

1 The final sitting of the ( '..urt at Philadelphia mu thus descri bed IB the Aurora, 
Aug. 11). huii: "On Friday last, the Supreme Court of the United States arose 

after a session of one week, during which time they heard and determined sundry 
causes of great importance. The case of Talbot v. Seaman i^ continued to the 

next Term. ... At the close of the term, Samuel Rayard. Esq., Clerk of the 
Court, resigned his office and declined to attend the future Marions u hich are to be 

held in Washington. Klias B. Caldwell. Esq., «>f New Jersey, ha-. !>een appointed 

Clerk of the Court. He will reside and keep his office in Georgetown, State of 
Maryland." 

2 In the sixteen active Terms between 17!>0 and 1S00. the decisions in only about 
sixty cases are reported by Alexander J. Dallas in his Reports, hut there were va- 
rious other cases decided but not reported, among which were Pintado v. lierned, 

see Note to 3 Dallas. 824, tkag., \~m\. Ex Parte Chandler, 7th Cong.. 1st sv.w., 904; 

Yalev. Todd, 18 How. 52, note; Pegan v. Hooper, see .''iff, Cong., } .d 8eee., House 
Doc. No. 123, opinion Atty.-Gen. Randolph, April 12, 17!K{; PepOOH v. Jenkins, 
ibid., letter of E. Tilghman to Randolph, March 1!), 1708; Anoni/mous Cast referred 
to in I Ops. Attys.-Gen., 71, as decided at Ant,'. Term, 1796; Prize Cases referred 
to in letter of Adet to Pickering, Nov. 15, 1796, Amer. State Papers, For. Rcl.. I, 
579; United States \. Hopkins, at Feb. Term, 1794, referred to in Charles Lee's 
argument in Marbury v. Madis-on. 



RUTLEDGE AND ELLSWORTH 159 

so sharply divided — neutrality, Federal common law 
criminal jurisdiction, the right of expatriation, the 
constitutionality of the Alien and Sedition laws — had 
been presented in cases arising before the Judges of the 
Court sitting on Circuit, and on each of these questions 
the decisions had been invariably adverse to the view 
held by the Anti-Federalists. The assertion of the 
jurisdiction of the United States Courts in cases in- 
volving criminal indictments based on English common 
law and on international law, in the absence of any 
Federal penal statute, had been especially obnoxious to 
the Anti-Federalists ; and the successive cases had 
been regarded with growing alarm — principally be- 
cause such common law indictments had been 
chiefly employed in convictions of persons accused of 
pro-French activ ties. 1 In the fall of 1799, the feeling 
of hostility towards these Fede al decisions had been 
brought to a head by a ruling made by Chief Justice 
Ellsworth in the Circuit Court for the District of Con- 
necticut in the case of Uni id States v. Isaac Williams; 
for, in sustaining an indictment for violation of the 
neutrality law prohibiting American citizens from ac- 
cepting commissions to serve a foreign power, he held 
that an American had no right of expatriation, since 
under the English common law no such right existed and 
the common law was binding upon the United States 



1 Chief Justices Jay and Ellsworth, and Judges Cushing, Iredell, Wilson and 
Washington had all sustained indictments at common law in the United States 
Courts; and Judge Chase alone had taken the contrary view in April, 1798, in 
United States v. Worrall, 2 Dallas, 384. See, in general, Politics for American Farm- 
ers (1807), by William Duane; Aurora, Nov. 7, 1799; Independent Chronicle, 
Nov. 18, 1799; History of the American Bar (1911), by Charles Warren; Marshall, 
III, 3-45. Attorney-General Lincoln in an official opinion, May 12, 1802, said : "I 
doubt the competency of the Federal Courts, there being no statute recognizing 
the offence", 26th Cong., 2d Sess., House Doc. No. 123, this opinion not being pub- 
lished in the official Ops. Atiys.-Gen., I ; see also letter of Jefferson, Aug. 16, 1793, 
as to the decisions of Jay and Wilson, relative to common law. Amer. State 
Papers, For. Rel, I, 167. 



160 THE SUPREME COURT 

Courts. 1 The doctrine so upheld at once elicited a 
flood of political abuse from the partisans of the French 
cause; for since the passage of the neutrality laws, 
American citizens who sympathized with France had 
made a practice of evading these laws by swearing al- 
legiance to that country and taking French commissions 
to privateer against English and neutral commerce. 2 
"This opinion," a writer in the Aurora said, "bends our 
necks under a foreign yoke. . . . We are not free, 
we are not an independent nation. ... It is an er- 
roneous and dangerous doctrine, unwarrantable, iniqui- 
tous and illegal. . . . The United States have no 
common law." A writer in the Virginia Argus ad- 
dressed a letter to Ellsworth in which he said that : "The 
rights of man have been arraigned, the dignity of the 
American people insulted, and their Constitution pro- 
faned by your decision ... as unprecedented in its 
nature as momentous in its consequences." He charac- 
terized the doctrine asserted, as a "revival of the anti- 

1 Reported in full in Connecticut Courant, Sept. 30, 1799, and in many contempo- 
rary newspapers throughout the United States; see also 2 Cranch, 82, note; Whar- 
ton's State Trials, 862; Hall's American Lair Journal, IV, 461. In A Dissertation 
on the Nature and Extent of the Jurisdiction of the Courts of the United States (1821), 
by Peter S. Duponceau, S:J, it is said: "This was. in respect of its applicat ion, a 
most unfortunate decision, and may be compared in its effects to the Sedition law. 
It WOUnded the feelings and opinions of the American people, by denying the right 
of expatriation and letting np the claim of perpetual allegiance. Thus a sound 
doctrine by being mixed With a doubtful, and. at any rate, an unpopular principle, 
made the nation afraid of the common law. which they thought turned their coun- 
try into a prison and preventing them from migrating whithersoever they pleased." 

2 That the Court, however, was inclined to enforce the law against (ireat Brit- 
ain as well as against France, and to restrain unneutral acts committed on our 
territory by either belligerent, may be seen from a case which baa not hitherto been 
noted by legal historians. In 17!)!). the Spanish Consul at Charleston, So. Car.. 
Don Diego Morphy, brought a suit in equity to restrain the British Consul, Benja- 
min Moody, from selling in the United States a Spanish ship, Xuestra Si<jnora, 
brought here as a prize by a British warship. Chief Justice Ellsworth, sitting in 
the Federal Circuit Court ordered an injunction, saying: "The selling of prizes 
is often very ensnaring, and insensibly draws in the citizens of a neutral State to 
depart from the observance of a strict neutrality, which is a reason why the neutral 
nation should be consulted. . . . An attempt therefore to exercise it is incompat- 
ible with the sovereignty of the State", and he held that such sale could not take 
place unless authorized by the President. Independent Chronicle, June 6, 1799. 



RUTLEDGE AND ELLSWORTH 161 

quated, opprobrious system of feudal vassalage", and 
termed the Chief Justice "a foe to republican principles 
and an advocate for monarchical principles ... a 
satellite of ambitious administration. . . . From the 
moment of your exaltation, we have seen the funda- 
mental principles of our government, the operation of 
its checks and balances disregarded and Judiciary 
independence exchanged for a timid servility ... in an 
ebullition of gratitude for your late appointment." 
And he concluded by saying that : "Every real Ameri- 
can will execrate your name and all recording Truth 
shall enroll your vices in the annals of futurity . . . amid 
the applause of pollution from a degraded party com- 
posed of the refuse of British slaves and Tories." 1 
Another Virginia paper said : "The natural rightformerly 
secured to the citizens of this State by law to expatriate 
themselves is abrogated ; by what ? Not by the Consti- 
tution of the United States, not by laws made under it, 
but by the judgment of a Federal Court. An obsolete 
principle, applicable only to the personal right of the 
former feudal sovereigns of England, is enforced by a 
free republic founded on a total denial of all such rights. 
. . . This odious principle is now revived here after its 
abolition throughout modern Europe by the practice 
of near two centuries. . . . By the Chief Justice's 
opinion, we are still the subjects of Great Britain ; we 
are so by this principle, her common law." 2 No de- 
cision by any Federal Judge had ever aroused so great 
and widespread resentment. Not only did the Anti- 
Federalists fear on general principles the spread of this 
doctrine of the English common law ; but they pointed 

1 Aurora, Oct. 30, 1799. See also pamphlet entitled Correspondence between 
George Nicholson, Esq., and Robert G. Harper (1799) ; Virginia Argus, Oct. 22, 
1799. 

2 See Genius of Liberty (Fredericksburg, Va.), quoted in The Bee (New London, 
Conn.), Oct. 30, 1799. 

VOL. I — 6 



162 THE SUPREME COURT 

out the disastrous effect of the decision upon the 
position which the United States had taken towards 
the claim of England of the right to impress naturalized 
American seamen — a claim founded on this very 
common law as to expatriation. "What can we here- 
after urge," said the Anti-Federalist newspapers, "when 
the Chief Justice sanctions with American authority 
the depredations on American property ? " 

A charge to the Grand Jury of the Circuit Court in 
South Carolina delivered by Chief Justice Ellsworth, 
in this same year, 1799, set forth even more emphati- 
cally his views of the extent of the existence of common 
law jurisdiction. After stating that all offenses defined 
in the Federal penal statutes, and all not contravening 
the law of nations, were indictable, he informed the jury 
that they might also indict for "acts manifestly sub- 
versive of the National Government, or of some of the 
powers specified in the Constitution. . . . An offence 
consists in transgressing the sovereign will, whether 
that will be expressed, or obviously implied. Conduct, 
therefore, clearly destructive of a government or its 
powers, which the people have ordained to exist, must 
be criminal." And he pointed out that indictable 
conduct of this nature need not be specifically defined 
by statute, but that "by the rules of a known law, 
matured by the reason of ages and which Americans 
have ever been tenacious of as a birthright, you will 
decide what acts are misdemeanours, on the ground of 
their opposing the existence of the National government 
or the efficient exercise of its legitimate powers." * 
Such a doctrine, authorizing a jury to find as criminal 
any act which in their opinion was "subversive of the 

1 See the charge quoted in full in Independent Chronicle, June 13, 1799 ; Farmer's 
Weekly Museum, June 17, 1799 ; Virginia Argus, Aug. 9, 1799 ; Federal Gazette 
and Baltimore Daily Advertiser, June 6, 1799. 



RUTLEDGE AND ELLSWORTH 163 

National Government" or of the exercise of its constitu- 
tional powers, would at least render it possible for the 
party in power to use the Courts as an engine of polit- 
ical persecution; and it was deeply abhorrent to the 
views of those who believed that the powers of the 
Government were restricted to the express grants of the 
Constitution. It was with considerable reason, there- 
fore, that widespread apprehensions were expressed at 
this doctrine. "It has long been feared that the 
Government of the United States tended to a consoli- 
dation," a correspondent wrote in the Virginia Argus, 
"and consolidation would generate monarchy. Noth- 
ing can so soon produce the first as the establishment of 
the doctrine that the common law of England is the 
law of the United States ; it renders the State Govern- 
ments useless burthens ; it gives the Federal Govern- 
ment and its Courts jurisdiction over every subject 
that has hitherto been supposed to belong to the States ; 
instead of the General Government being instituted 
for particular purposes, it embraces every subject to 
which government can apply . . . ; the whole range of 
legislation and jurisprudence is within its omnipotent 
grasp." * This doctrine was, moreover, regarded by the 
Anti-Federalists as merely a portion of the general 
plan of the Federalist party to control the Judiciary ; 
and its support by the Judiciary was considered merely 
further evidence of their devotion to Federalism. 
"Judges would not introduce so novel, so important and 
extensively dangerous doctrine unless they were well 
assured it was pleasing to and would be supported by 
the Government," wrote Charles Pinckney. 2 Jefferson, 
writing to Pinckney, expressed his views of the obnox- 
ious jurisdiction so asserted by the Courts, as follows : 

1 Virginia Argus, Aug. 9, 1799. 

8 Charleston City Gazette (S. C.), Oct. 6, 1800, letter signed "Republican." 



164 THE SUPREME COURT 

44 1 consider all the encroachments made on that (Consti- 
tution) heretofore as nothing, as mere retail stuff 
compared with the wholesale doctrine, that there is a 
common law in force in the United States of which and 
of all the cases within its provisions, their Courts have 
cognizance. It is complete consolidation. Ellsworth 
and Iredell have openly recognized it. Washington 
has squinted at it, and I have no doubt it has been de- 
cided to cram it down our throats." Writing to Ed- 
mund Randolph also, Jefferson said that: "Of all the 
doctrines which have ever been broached by the Federal 
Government, the novel one, of the common law being 
in force and cognizable as an existing law in their Courts, 
is to me the most formidable. All their other assump- 
tions of un-given powers have been in the detail. The 
Bank Law, the Treaty Doctrine, the Sedition Act, the 
Alien Act, the undertaking to change the State laws 
of evidence by certain parts of the Stamp Act, etc., 
have been solitary, unconsequential, timid things, in 
comparison with the audacious, barefaced and sweeping 
pretension to a system of law for the United States, 
without the adoption of their Legislature, and so infi- 
nitely beyond their power to adopt. If this assumption 
be yielded to, the State Courts may be shut up." 1 

While the alarm of the Anti-Federalists over this 
wide jurisdiction claimed by the United States Courts 
was grave, their indignation was even deeper over the 
administration of the detested Sedition Law by the 

1 To Gideon Granger, Jefferson wrote, Aug. 18, 1800: "And I do verily believe 
that if the principle were to prevail of a common law being in force in the United 
States (which principle possesses the general government at once of all the powers 
of the State Governments and reduces us to a single consolidated government) it 
would become the most corrupt government on the earth." Jefferson, IX. See 
also letters of Aug. 18, 19, 1799, Oct. 29, 1799, June 12, 1817. James Monroe, 
writing to Breckenridge, expressed the hope that any opposition by the Judges to 
the sovereignty of the people such as "the application of the principles of the Eng- 
lish common law to our Constitution", would be good cause for impeachment. 
Breckenridge Papers MSS, letter to Breckenridge, Jan. 18, 1802, infra, 229. 



RUTLEDGE AND ELLSWORTH 165 

Judges of these Courts, and the upholding of the consti- 
tutionality of that Law by Judges Paterson and Chase 
in the trials of Mathew Lyon, Thomas Cooper, James 
Callender and others in 1799 and 1800 was regarded as 
a serious attack on the Constitution itself. 1 Moreover, 
the constant practice indulged in by the Judges of the 
United States Courts of expressing their views on polit- 
ical issues in charges to the grand juries was regarded 
by the Anti-Federalists as an outrageous extension of 
judicial power. Jefferson termed it "a perversion of 
the institution of the grand jury from a legal to a polit- 
ical engine." 2 "We have seen Judges who ought to 
be independent, converted into political partisans and 
like executive missionaries pronouncing political ha- 
rangues throughout the United States" was the de- 
scription of the situation given by an Anti-Federalist 
Congressman. This language was surely justified when 
a Judge of the Court deemed it proper to deliver a 
charge reported by the Federalist newspapers as "truly 
patriotic" as follows: "After some general reflections 
on the relative situation between the United States and 
France, the learned Judge went into a defence of the 
alien and sedition laws, and proved them, it is believed, 

1 See especially, Marshall, III, 3-45 ; The Enforcement of the Alien and Sedition 
Laws, by Frank Malley Anderson, Amer. Hist. Ass. Report (1912). In Contem- 
porary Opinion of the Virginia and Kentucky Resolutions, by Frank Malley Ander- 
son, Amer. Hist. Rev. (1899), X, it is said : "The Federalists manifested an utterly 
imperious and intolerant demeanour towards their Republican opponents and 
the imprisonment of (Abijah) Adams indicates that the Federalists were ready 
upon the slightest provocation to treat opposition to the policy of the Adminis- 
tration, whether Federal or State, as a crime. That case certainly does much to 
explain why Jefferson and other Republican leaders could fear that Republican 
institutions were about to be overthrown." 

2 Jefferson, VIII, letter to P. Fitzhugh, June 4, 1797 ; 7th Cong., 1st Sess., speech 
of William B. Giles in the House, Feb. 18, 1802. A letter to the Independent Chron- 
icle, quoted in Aurora, June 21, 1802, spoke of Judges "itinerating through their 
Circuits and converting the holy seat of law, reason and equity into a rostrum 
from which they could harangue the populace under the artful pretence of instruct- 
ing a grand jury, and excite an alarming fanaticism among them under cover of 
legal authority." 



166 THE SUPREME COURT 

to the satisfaction of every unprejudiced mind to be 
perfectly consistent with the principles of the Constitu- 
tion and to be founded on the wisest maxims of policy. 
The Judge concluded with calling the attention of the 
Grand Jury to the present situation of the country and 
with remarks on the mild and virtuous administration 
of the government." ' The fact that such political 
charges were praised by the Federalist papers as "re- 
plete with sound principles and the very essence of 
Federalism", and as being "among the more vigorous 
productions of the American pen. ... In these useful 
addresses to the jury, we not only discern legal informa- 
tion, conveyed in a style at once popular and condensed, 
but much political and constitutional knowledge", 2 
served to enhance the indignation of the Anti-Federal- 
ists. And their apprehensions were not dispelled by 
the defense made by a Federalist Congressman, James 
A. Bayard, that though the Judges had been charged 

1 Charge to the Grand Jury in New Jersey by Judge Iredell, Federal Gazette and 
Baltimnrr Daih/ Adrertiser, April 10, 17!)!). 

* Farmer's Weekly Museum (W'alpole, N. ID. Sept. & 1708. June 17, 1799. See 
also Oracle of the Day i Portsmouth. N. ft.), May *<*>. 1788. In Xew Jersey Gazette, 
April 12, 170."), there i> ;i report of | charge <»f lodge Iredell to the Circuit Court 
Grand Jury in New Jersey in which he pivc at length his views on the Jay Treaty 
a topic of excited political discussion; and the Federal Gazette and Baltimore 
Daily Advertiser, April 10. 1707. reports | charge of Judge Iredell to the Grand 
Jury in Pennsylvania, dealing with the duties of a citizen not to give "hostile assist- 
ance to any of the warring powers", — | subject on which there was heated polit- 
ical division; see ibid,, April 10. 170S, containing a letter praising a charge by 
Judge Chase. Judge dishing in I charge to the Grand Jury in Virginia, Sept. 2.S, 
1798, portrayed the horrors of the French Revolution and urged them to he on their 
guard against French wiles and "the plot against the rights of Nations and of man- 
kind and against all religion, and virtue, order and decency." Judge Bay of the 
United States District Court in South Carolina, in a charge to the Grand Jury, 
Nov., 170S, praised President Adams, appealed for support to his Administration 
and denounced the "recalcitrant few" in South Carolina who indulged in partisan 
antagonism. Carolina Gazette, Dec. £7, 1798; South Carolina Federalists, in Amer. 
Hist. Her. (1Q09). The Oracle of the Day, May i\, 1K00, described "a most elegant 
and appropriate" charge of Judge Paterson : "The law was laid down in a mas- 
terly manner. Politics were set in their true light; by holding tip the Jacobins 
as the disorganization of our happy country and the only instruments of intro- 
ducing discontent and dissatisfaction among the well-meaning part of the commu- 
nity." The "Jacobins" thus referred to by the Judge were his political opponents, 
the Anti-Federalists. 



RUTLEDGE AND ELLSWORTH 167 

"with having transgressed the bounds of judicial duty 
and become the apostles of a political sect, traveling 
about the country for little other purpose than to preach 
the Federal doctrines to the people", nevertheless, all 
that they had done was to unfold and explain the prin- 
ciples of the Constitution, to explain the laws, "and 
when some of the laws have been denounced by the 
enemies of the Administration as unconstitutional the 
Judges have felt themselves called upon to express their 
judgments upon that point and the reasons of their 
opinion." In retort to this defense, it was very properly 
said that it was not the business of the Judges to be 
concerned with the views, either of "friends" or of 
"enemies of the Administration." 

The appointments by Presidents Washington and 
Adams of Jay and Ellsworth as Ambassadors had fur- 
ther served to convince the Anti-Federalists that the 
Judicial Bench was being made simply an annex to the 
Federalist party. "It (the Executive) has been able to 
draw into this vortex the Judiciary branch of the Gov- 
ernment, and by their expectancy of sharing the other 
offices in the Executive gift to make them auxiliary to 
the Executive in all its views, instead of forming a bal- 
ance between that and the Legislature, as it was origi- 
nally intended," wrote Jefferson. 1 Madison vigorously 
opposed the practice. "It is an unwise and degrading 
situation for a National Judiciary," said Charles 
Pinckney in the Senate, in 1800; and to establish the 
independence of the Judges and free them from the 
control or interference of the Executive, he proposed 

1 Jefferson, VIII, 205, notes on Prof. Ebeling's letter of July 30, 1795. Writing to 
Madison, Dec. 28, 1794, ibid., 156, Jefferson had said, relative to the new "infer- 
nal" excise law: "We shall see what the Court lawyers and Courtly Judges and 
would-be Ambassadors will make out of it." The notorious James T. Callender in 
The Prospect Before Us (1800), 83, wrote : "Think of the gross and audacious pros- 
titution of the federal bench by the successive selection of foreign ambassadors 
from that body." Madison, VI, letter to Jefferson, March 15, 1800. 



168 THE SUPREME COURT 

an Amendment to the Constitution providing that the 
United States Judges should hold no other appointment 
or office, and later he introduced a bill to accomplish 
the same end. 1 

During the great struggle for the Presidency in the 
fall of 1800, which resulted in the overthrow of the 
Federalist Party, and which produced a complete revo- 
lution in the political trend of the country, the general 
attitude of the Judges of the United States Courts 
had been one of the campaign issues. And as a 
consequence of the hostility towards the Federal Ju- 
diciary thus entertained by the Anti-Federalist Party, 
the Court, upon convening for the first Term to be 
held in the new city of Washington in February, 1801, 
entered upon a new period in its history. During 
the subsequent thirty-five years, it was destined to 
be the center of persistent political opposition, out of 
which, nevertheless, it was to emerge more fixedly es- 
tablished as an independent branch of the American 
Government, more potent a factor in the industrial, 
social and political development of the country, and 
more securely intrenched in the public confidence and 
respect. 

1 6th Cong., 1st Sess., March 5, April 3, 1800. A similar Constitutional Amend- 
ment was introduced in the House by Livingston, of New York, Feb. 13, 1800. A 
resolution to provide for similar legislation was introduced into the House again 
in 1804. See New York Daily Advertiser, Feb. 7, 1804. Timothy Pickering wrote, 
May 19, 1828, on the Independence of the Judiciary: "Perhaps it might be expe- 
dient, to render this as perfect as any human institution can be, to declare, as an 
Amendment to the Constitution, that a Justice of the Supreme Court of the United 
States should be forever precluded from every other office and place under the 
General Government; either by the appointment of the Executive or Congress 
or the election of the people." Pickering Papers MSS. 



CHAPTER FOUR 
MARSHALL, JEFFERSON, AND THE JUDICIARY 

1800-1802 

When, in 1800, the Government was removed to 
Washington, the "Federal City", buildings had been 
erected for the use of the Executive and Legislative 
branches, of such size and elaboration as to have given 
rise to criticism in Congress that the White House 
and Capitol were "much too extravagant, more so than 
any palace in Europe " ; that they were built in " extrav- 
agant style" and that "gentlemen blushed on account 
of the magnificence displayed." 1 For the third and 
coordinate branch of the Government, however, the 
Judiciary, no arrangement whatever had been made; 
and it was not until two weeks before the Court opened 
its first Term in Washington that Congress even 
provided a place in which its session could be held. 
The first official suggestion of a building for the Court 
in Washington seems to have been in 1796, when a 
Committee of the House of Representatives stated 
that "a building for the Judiciary" was among the 
objects yet to be accomplished in establishing the per- 
manent seat of government. 2 A report in 1798 made 
by Alexander White, one of the Commissioners for 

1 Uh Cong., 1st Sess., Feb. 24, 1796. See speech of John Williams of New York, 
366, speech of W. B. Giles of Virginia, 367, speech of Sylvanus Bourne of Massa- 
chusetts, 373, speech of Jeremiah Crabb of Maryland, 371. 

2 Amer. State Papers, Misc., I, Nos. 70, 78, Jan. 26, 1796 ; 9th Cong., U Sess., 
497. A note to a debate in Congress, Feb. 13, 1807, says : "In the original plan 
of the Capitol no room was provided for the Courts of the United States." Clay- 
poole's American Daily Advertiser, Aug. 10, 1798. 



170 THE SUPREME COURT 

the Federal City, stated that : "No plan having been 
agreed upon, or even proposed for a Judiciary (build- 
ing), the sum of 100,000 dollars is suggested, merely 
for consideration ; and the immediate erection of that 
edifice is not considered so essential as houses for the 
accommodation of Congress, of the President and 
the Executive offices." It was not until January L 20, 
1801, that any steps were actually taken to provide 
the Court with a place for its approaching session. "As 
no house has been provided for the Judiciary of the 
United States, we hope the Supreme Court may be 
accommodated with a room in the Capitol to hold its 
sessions until further provisions shall be made, an 
arrangement, however, which we would not presume 
to make without the approbation of Congress," was 
the mild suggestion of the District Commissioners to 
Congress ;* and on the next day, January ^21, the Senate 
resolved that: "The Secretary be directed to inform 
the Commissioners of the City of Washington that the 
Senate consent to the accommodation of the Supreme 
Court in one of the Committee rooms, as proposed in 
their letter." On January c 2:>, a resolution was reported 
and passed: "That leave be given to the Commissioners 
of the City of Washington to use one of the rooms on the 
first floor of the Capitol for holding the present session 
of the Supreme Court of the United States." 2 It lias 
been generally stated hitherto that the room assigned 
to the Court in 1801, and in which it sat throughout 

1 Documentary History of the Construction and Development of the United States 
Capitol Building and Grounds (1904), 58th Cong., 2d Scss., //. R. Report So. 6tf. 

3 A further resolution was laid on the table and directed <<> bfl printed : " Resolved, 
that a suitable apartment or apartments in that part of the Capitol already finished 
ought to be fitted up for the temporary accommodation of the Courts of the United 
States, appointed or hereafter appointed to bfl held in ittcfa < it v. and of lUcb Court, 
as may hereafter be appointed to bfl held tin-rein for the Territory of Columbia, 
and in completing the Capitol permanent Accommodation f Of the Mid Court&jBUghl 
to be provided therein." Senate Proc., Jan. II, 1801, SenaU Joum., UC; House 
Proc., of Jan. 23, 1801, House Journ., 771, 6th Cong., 1st Sess. 



... s . 






MARSHALL AND JEFFERSON 171 

its early years, was the present Law Library room 
underneath the present Court-room. 1 Such, however, 
is not the case. 2 The North Wing, which was the only 
part of the Capitol then finished, consisted of a basement 
floor containing, on the east side, the east entrance 
hall and the Senate Chamber (the latter being a room 
48 by 86 feet and 41 feet high, its gallery being on the 
same level with the present first floor of the Capitol) ; 
in the center of the basement floor was a grand stair- 
way hall, and a Senate ante-chamber ; and on the west 
side, four committee rooms. On the first floor, on the 
east side and over the east entrance hall, there was an 
office designated for the Senate Clerk ; and on the 
west side, a House Clerk's office, and a large room 
(35 by 80 feet) devoted in the early years to the House 
of Representatives, and later to the Library of Congress. 
Over the Senate ante-chamber was the House ante- 
chamber (the hallway of the present Supreme Court), 
which to the west opened into the House and to the 
east opened into the Senate Gallery. The room which 
was assigned to the Court in 1801, and occupied by it 
until 1808, was that known as the Senate Clerk's Office 
(now occupied by the Marshal of the Court) located 
on the main or first floor, over the basement east 
entrance hall. In this small and undignified chamber, 
only 24 feet wide, 30 feet long and 21 feet high, and 
rounded at the south end, the Chief Justice of the 
United States and his Associates sat for eight years. 
Before the date of the first session of the Court in 
Washington, Chief Justice Ellsworth, who was still 

l See this misstatement in "The Supreme Court Room" in Case and Comment 
(1890), II, 97; in Woolworth's Speech before the Omaha Bar Ass'n, Feb. 4, 1901 ; 
in Marshall's Life, Character and Judicial Service, III, 32; in The National Capitol 
(1897), by G. C. Hazelton, Jr., 186; in History of the Supreme Court (1891), by 
Hampton L. Carson, 241 ; and in Marshall, III, 121, note. 

2 History of the Capitol (1900), by Glenn Brown, I, 24, 25, 28. 



172 THE SUPREME COURT 

in France, resigned owing to ill health, and President 
Adams at once appointed as his successor the former 
Chief Justice, John Jay. "I have nominated you to 
your old station," he wrote on December 19, 1800. 
1 'This is as independent of the inconstancy of the 
people as it is of the will of a President. In the 
future administration of our country, the firmest 
security we can have against the effects of visionary 
schemes or fluctuating theories will be in a solid Judi- 
ciary ; and nothing will cheer the hopes of the best men 
so much as your acceptance of this appointment. You 
have now a great opportunity to render a most signal 
service to your country. ... I had no permission 
from you to take this step, but it appeared to me that 
Providence had thrown in my way an opportunity, not 
only of marking to the public the spot where, in my 
opinion, the greatest mass of worth remained collected 
in one individual, but of furnishing my country with 
the best security its inhabitants afforded against the 
increasing dissolution of morals." 1 Though his ap- 
pointment was confirmed by the Senate and his com- 
mission actually issued, Jay declined the office, basing 

1 Jay, IV, lettat tO Adam-. .Ian. 2, ISOl ; King, III. Works qf John Adams, 

IX. It appear* thai Samuel SHgreaves <>f Pennsylvania was suggested by ram 
for the position. "There is ■ newspaper report that Judge Ellsworth is about 
to resign," wrote Timothy Pickering to Etafui King, Dee. *7. 1800. "I should 
be gratified to see our friend SH g re a v ei on the Bench. If Judge Ellsworth con- 
templated a resignation when at Paris, I hope In- may have mentioned it to Mr. 
S. and thai he may be authorised to recommend the latter i«» the President." 
Robert Troup un.tr to King, Dec. M, 1800, regarding the effect of Ellsworth*! 
resignation upon the Federalist party, itating that Alexander Hamilton was re- 
garded "as an unfit bead <>f the party, being radii ally defic i en t in the quality <>f 
discretion" and that "we are in met without .i rallying point. I have for some 
time past consoled myself with the idea that Mr. Ellsworth would form ■ rallying 

point for US. This idea, however, has vanished with his resignation of the office of 
Chief Justice. We fear he is lost to public life forever." A New York letter to 
the Aurora had stated as early as Hay ~i, L800, that : "We expect t<> put Mr. Jay 
in the way for a Federal c »f lice. It is understood that his old station of Chief Jus- 
tice would be given him as a make-peace, but -lay wishes to he Vice-President 
or President.'' On Inarch in. 1800, the Aurora had said that Adams' friends 
"proposed 'old Father Ellsworth' as his successor." 

Jay was nominated Dec. 18, 1800, and confirmed Dec. 19. 



MARSHALL AND JEFFERSON 173 

his refusal largely on the failure of Congress to relieve 
the Judges from their onerous duty of sitting in the 
Circuit Courts. The original Judiciary Act, he wrote, 
was "in some respects, more accommodated to certain 
prejudices and sensibilities, than to the great and obvious 
principles of policy. Expectations were, nevertheless, 
entertained that it would be amended as the public 
mind became more composed and better informed ; but 
those expectations have not been realized nor have we 
hitherto seen convincing indications of a disposition in 
Congress to realize them. On the contrary, the efforts 
repeatedly made to place the Judicial Department on a 
proper footing have proved fruitless. I left the Bench 
perfectly convinced that under a system so defective, it 
would not obtain the energy, weight and dignity which 
are essential to its affording due support to the National 
Government, nor acquire the public confidence and 
respect which, as the last resort of the justice of the 
nation, it should possess. Hence, I am induced to 
doubt both the propriety and the expediency of return- 
ing to the Bench, under the present system ; especially 
as it would give some countenance to the neglect and 
indifference with which the opinions and remonstrances 
of the Judges on this important subject have been 
treated. ... I find that, independent of other consid- 
erations, the state of my health removes every doubt, 
it being clearly and decidedly incompetent to the 
fatigues incident to the office." 

The papers of the day paid little attention to the 
appointment of a new Chief Justice ; but the Aurora, 
naturally adverse to Jay's political views, made the 
sarcastic comment that: "John Jay after having thru' 
decay of age become incompetent to discharge the 
duties of Governor, has been appointed to the sine- 
cure of Chief Justice of the United States. That the 



174 THE SUPREME COURT 

Chief Justiceship is a sinecure needs no other evidence 
than that in one case the duties were discharged by 
one person who resided at the same time in England, 
and by another during a year's residence in France." 1 
The appointment met with an equal lack of enthusiasm 
from Jefferson, who wrote to Madison, December 19, 
1800: '' Ellsworth remains in France for the benefit 
of his health. He has resigned his office of C. J. 
Putting these two things together, we cannot miscon- 
strue his views. He must have had confidence in Mr. 
A(dams') continuance, to risk such a certainty as he 
held. Jay was yesterday nominated Chief Justice. 
We were afraid of something worse." Such few 
Federalist newspapers as noticed the appointment at 
all greeted it with applause. "We are happy to find 
that this office, lately so ably filled by Judge Ellsworth, 
is about to devolve again on a character whose talents 
and abilities amply qualify him to preside with dignity 
to himself and honour to this country in the first Court 
in the United States," said one. 2 But I lie President's 
choice did not meet with universal approval from the 
leaders of his own party. 1 Timothy Pickering wrote 
to Oliver Wolcott, that as Jay "had already declined 
a less arduous position on account of his advanced age, 
this nomination is here considered one of those 'sport- 
ive' humors for which our Chief IS distinguished M ; 
and he wrote to Bufus King that : "The President has 
nominated Mr. Jay to be Chief Justice in the room of 
Judge Ellsworth. The Senate of course ratified the 
nomination ; but the President, as well as everybody 
else, must know that Mr. Jay will not accept the office. 
He formally announced to the Legislature of New York 

1 Aurora, Jan. 8, 1801. 

2 Farmer's Weekly Museum, Jan. 19, 1801. 

8 Pickering Papers MS8, letters of Dec. 9, 1800, Jan. 5, 1801; King, III; 
Hamilton (J. C Hamilton's ed.) VI, letter of Gunn to Hamilton, Dec. 18, 1800. 



MARSHALL AND JEFFERSON 175 

his determination to retire from public life on account 
of his advanced age and infirmities. Under such 
circumstances, nobody but Mr. A. would have made 
the nomination without consulting Mr. Jay. ... As 
Mr. Jay will certainly refuse the Chief Justiceship, 
I presume Judge Paterson will be appointed ; and his 
vacancy, I am disposed to think, will be filled either 
from New York or Pennsylvania. If from the former, 
perhaps by Judge Lawrence." One of Hamilton's 
adherents wrote to him: "Either Judge Paterson or 
General Pinckney ought to have been appointed ; but 
both those worthies were your friends." Failing to 
obtain Jay's acceptance and unwilling to consider the 
appointment of any man in the Hamiltonian faction 
of the Federalist party, President Adams surprised 
his associates and the country in general by sending 
to the Senate on January 20, 1801, as his second choice 
for Chief Justice, the name of his Secretary of State, 
John Marshall of Virginia. To Elias Boudinot of 
the New Jersey Bar, who had written that the Bar would 
like to see Adams himself in the position, Adams 
wrote that he was too old, too long away from active 
practice, and that he had nominated "a gentleman in 
the full vigor of middle age, in the full habits of business 
and whose reading of the science is fresh in his head." 
Marshall was forty-five years old, and, while having 
held no judicial office, had practiced at the Bar for 
twelve years with such success that, as early as 1796, 
Charles Lee had written to Washington that he was 
"at the head of his profession in Virginia." Most 
of the Federalist leaders, however, resented the nomi- 
nation, believing that Judge Paterson should have 
been promoted to the Chief Justiceship, for which he 
was so eminently fitted. "I think it a pity," wrote 
James Hillhouse of Connecticut, "that the feelings 



176 THE SUPREME COURT 

of so honorable and able a Judge should be wounded, 
as I have no doubt he will be, by having a younger 
lawyer, not more eminent in that line, put over his 
head." x 

So strong was the feeling in the Senate against the 
nomination of Marshall that the Federalists were 
actually prepared to refuse to confirm him, if by 
such action they could have induced the President to 
appoint Paterson. Accordingly they postponed their 
vote for a week ; but finding Adams inflexibly opposed 
to Paterson, they finally yielded, and the nomination 
was confirmed on January ^27, 1801. The fact that 
John Marshall attained the Chief Justiceship, in the 
face of pronounced Federalist opposition, and only 
because of the obstinacy of John Adams, La not gener- 
ally known, but is most interestingly pictured in a 
series of letters from Jonathan Dayton, the Senator 
from New Jersey, to Judge Paterson. 2 On the day 
of the nomination, Dayton wrote that it was "with 
grief, astonishment and almost indignation" that 
he informed Paterson of Marshall's nomination "con- 
trary to the hopes and expectations of us all." "The 
eyes of all parties had been turned upon you, whose 

1 Works of John Adams, IX. 91, letter of Jan. M, ISO] ; Lift and Letters of Sim- 
eon Baldwin (1919), l»y Simeon B. Baldwin, letter <>f Jan. 81, 1801. Even eo hos- 
tile a paper ai the Aurora ->;ii<l that Jud^e Paterson had "ever been considered 

oik- of the ablest lawyers America has produced." Later, the Aurora stated that 
Paterson's failure to secure the nomination was due to certain Federalists who 
resented his deciaion in 1795 in holding unconstitutional a Pennsylvania statute 
enacted in favor of Connecticut settlers. Aurora. Jan. 21, 1801, Jan. **, Sept. 
20, 28, 1803. 

2 Paterson Papers MSS, transcript in New York Public Library, letters of Day- 
ton to Paterson. Jan. 20, 28, Feb. 1, 1801, letter of Marshall to Paterson, Feb. 2, 
1801. 

James A. Bayard wrote. Jan. 28, 1801, to Andrew Bayard: "I see it denied in 
your papers that Mr. Marshall was nominated Chief Justice of the U. S. The 
fact is so, and will, without doubt, have the concurrence of the Senate. Some 
hesitation was at first expressed from a respect to the pretensions of Paterson.*' 
Jamei A. Bayard Papers (1915). See also History of the A<lininisfrations of Wash- 
ington and Adams (1846), by George Gibbs, II, 461 ; King, III, letter of Feb. 17, 
1801. 



MARSHALL AND JEFFERSON 177 

pretensions we knew were in every respect the best, 
and who would have been the most acceptable to the 
country. Painful as it would be for the Senate to 
reject a man of such respectable talents and standing 
as Mr. Marshall unquestionably is, I am convinced, 
nevertheless, that they would do it, if they could be 
assured that thereby you would be called to fill it, 
and he brought upon the Bench as a Junior Judge" ; 
and he continued by saying that Mr. Adams' whole 
conduct and nominations had manifested "such 
debility or derangement of intellect" as to convince 
the Federalists that another four years of his Admin- 
istration would expose them to destruction. Eight 
days later, Dayton wrote that, on his motion, the 
Senate had postponed action, in order to ascertain 
"whether the President could be induced under any 
circumstances whatever to nominate you. If we 
could have been satisfied of this, we should have taken 
measures to prevail on Mr. Marshall to have, himself, 
declined the highest for a lower seat upon the Bench, 
or, in case of his refusal, have negatived him. This 
would have been a course of proceeding painful indeed 
to the Federalists on account of their esteem for that 
gentleman and their respect for his talents, and to which 
nothing could have brought them, but their very strong 
attachment for you and their very high sense of your 
superior title and pretensions. It must be gratifying 
to you to learn that all voices were united in favor of 
conferring this appointment upon you. The Presi- 
dent alone was inflexible and declared that he would 
never nominate you. Under these circumstances, we 
thought it advisable to confirm Mr. Marshall, lest 
another not so well qualified and more disgusting to 
the Bench should be substituted, and because it 
appeared that this gentleman was not privy to his own 



178 THE SUPREME COURT 

nomination, but had previously exerted his influence 
with the President on your behalf." 1 

On January 31, the Secretary of War, Samuel Dexter, 
acting pro tempore as Secretary of State, by direction 
of the President, signed the new Chief Justice's com- 
mission ; and on February 4, the day that the Court 
convened, Marshall wrote to the President expressing 
his "grateful acknowledgment for the honor" and 
saying: "This additional and flattering mark of your 
good opinion has made an impression on my mind 
which time will not efface. I shall enter immediately 
on the duties of this office and hope never to give you 
occasion to regret having made this appointment." 

Though Senator Dayton had termed Marshall's 
appointment a "wild freak" of President Adams, the 
latter never wavered in his confidence in the supreme 
fitness of his new Chief Justice. "My gift of John 
Marshall to the people of the United States was the 
proudest act of my life," he said to Marshall's son, 
twenty-five years later, and to another visitor : "There 
is no act of my life on which I reflect with more pleasure. 
I have given to my country a Judge, equal to a Hale, a 
Holt, or a Mansfield." 2 The party associates of the 

1 It appears from a letter of Dayton to Paterson, Feb. 1, 1801, that Paterson 
had written Fetr i5, saying that he felt "neither resentment nor disgust" at the 
appointment of Marshall, and good naturedly reproving Dayton for the warmth 
of temper of his letter. Dayton stated in hlfl letter that "the dissatisfaction among 
the Members of Congress in consequent e of your being thus passed by appeared 
to me universal, and this sensation probably derived greater strength from the 
apprehension that it might drive you from your seat upon the Bench, where all men 
of all parties were anxious that you should remain." 

Marshall wrote to Paterson, Feb. i, 1801, asking him to "accept my warm and 
sincere acknowledgment for your polite and friendly sentiments on the appointment 
with which I have been lately honored." 

2 See oration by John II . Bryan, Congressman from North Carolina, June 23, 
1830, in Niles Register, XXXIX, 11. Judge Story, in his Discourse on Marshall, 
states also that John Quiney Adams wrote to a certain Judge: "One of the last 
acts of my father's Administration was the transmission of a commission to John 
Marshall as Chief Justice of the United States. One of the last acts of my Admin- 
istration is the transmission of the enclosed commission to you. If neither of us 
had ever done anything else to deserve the approbation of our country and of pos- 



MARSHALL AND JEFFERSON 179 

new Chief Justice, however, did not share in Adams' 
view in 1801 ; and they little comprehended Marshall's 
breadth of vision or constructive power as a jurist 
and statesman. Thus Oliver Wolcott had written to 
Fisher Ames, in December, 1799, that Marshall was 
"doubtless a man of virtue and distinguished talents, 
but he will think much of the State of Virginia, and is 
too much disposed to govern the world according to 
rules of logic ; he will read and expound the Constitu- 
tion as if it were a penal statute, and will sometimes be 
embarrassed with doubts, of which his friends will not 
perceive the importance"; George Cabot had written 
to Timothy Pickering, in 1798: "Mr. Marshall, I 
know, has much to learn on the subject of a practicable 
system of free government for the United States. I 
believe, however, he is a man of so much good sense, 
that, with honest principles, he cannot fail to discern 
and pursue a right course, and therefore that he will 
eventually prove a great acquisition", and in 1800, 
he wrote of his "great talents and, I believe, great vir- 
tues. But I fear he is not yet a politician and has much 
to learn on the subject of practicable theories of free 
government." l Theodore Sedgwick wrote of Marshall, 
less than a year before his appointment : "He is a man 
of a very affectionate disposition, of great simplicity 
of manner, and honest and honorable in all his conduct. 
He is attached to pleasures, with convivial habits 
strongly fixed. He is indolent therefore and indisposed 
to take part in the common business of the house. He 
has a strong attachment to popularity but indisposed 
to sacrifice to it his integrity ; hence it is that he is 
disposed on all popular subjects to feel the public 

terity, I would proudly claim it of both for these acts as due to my father and my- 
self." 

1 Life and Letters of George Cabot (1877), by Henry Cabot Lodge, letter of Cabot 
to Pickering, Oct. 31, 1798, letter of Cabot to Gore, Jan. 21, 1800. 



180 THE SUPREME COURT 

pulse, and hence results indecision and an expression 
of doubt. . . . This gentleman, when aroused, has 
strong reasoning powers, they are indeed almost un- 
equalled." ! Fisher Ames could not pardon Marshall's 
disapproval of the Alien and Sedition laws and wrote : 
"Excuses may palliate; future zeal in the cause may 
partially atone ; but his character is done for. . . . 
False Federalists or such as act wrong from false fears 
should be dealt hardly with, if I were Jupiter Tonans." 
On the other hand, Jeremiah Smith had written that 
he placed "great confidence in Marshall as a true 
patriot and a discerning man." 2 Washington had 
written that he had "a high opinion of General Mar- 
shall's honor, prudence and judgment"; and since it 
was due to his special request that Marshall became 
a candidate for Congress and was thus brought into 
close contact with President Adams, it may justly 
be said that it was primarily to Washington that the 
country owed its great Chief Justice. 3 

But, though some of his contemporaries were not 
enthusiastic in their estimation of Marshall as a 
statesman, he was ranked as a lawyer among the 
three or four leaders of the Virginia Bar. Of these 
leaders, wrote a fellow member of the Bar in 179(1, 

1 King, 111, letter of Sedgwick t<> Kin-,', May 11, 1800; Works of Fisher Ames, 
I, letter of Dec. 18, 1798, to Christopher Gore; see also letter of Cabot to King, 

April 26, 1799: "Marshall OUghl not to Ik* attacked in the newspapers nor too 
severely condemned anywhere, because Marshall has not yet learned his whole les- 
son, but has a mind and disposition which can hardly fail to make him presently 
an accomplished political scholar and a very useful man. Some allowance' too, 
should be made for the influence of the atmosphere of Virginia, which doubtless 
makes everyone who breathes it visionary and, upon the subject of free govern- 
ment, incredibly credulous; but it is certain that Marshall at Philadelphia would 
become a most powerful auxiliary to the cause of order and good government, and 
therefore we ought not to diminish his fame, which would ultimately be a loss to 
ourselves." 

2 Life of Jeremiah Smith (1845), by John H. Morison, letter of June 27, 1798; 
Washington, XII, letter to Edward Carrington, Oct. 9, 1795. 

3 See especially interesting account of Washington's conference with Marshall 
and Bushrod Washington, in 1798, in Autobioyrapluj of Martin \'on Buren in Amcr. 
Hist. Ass. Rep. (1918), II. 



MARSHALL AND JEFFERSON 181 

James Innes, the Attorney-General of Virginia, "ranks 
first in genius, in force of thought, in power of expres- 
sion, and in effect of voice and manner"; "public 
opinion gives the next rank as an orator to Edmund 
Randolph", and "John Marshall (a general of militia) 
is inferior in voice and manner, but for talent, he 
substitutes genius, and instead of talking about his 
subject, he talks upon it. He possesses neither the 
energy of expression nor the sublimity of imagination 
of Innes, but he is superior to every other orator at 
the Bar of Virginia, in closeness of argument, in his 
most surprising talent of placing his case in that point 
of view suited to the purpose he aims at, throwing a 
blaze of light upon it, and of keeping the attention of 
his hearers fixed upon the object to which he originally 
directed it. He speaks like a man of plain common 
sense, while he delights and informs the acute. In a 
less captivating line of oratory than that which signal- 
izes Innes, he is equally great and equally successful. 
The jury obeys Innes from inclination, Marshall from 
duty. 9 ' 1 Another contemporary well summed up Mar- 
shall's peculiar powers by describing the "irresistible 
cogency and luminous simplicity in the order of his 
reasoning." 

By many of his political opponents, Marshall was 
held in slight estimation, and in the Aurora, in 1800, 
he had been characterized as "more distinguished as a 
rhetorician and sophist than as a lawyer and statesman, 
sufficiently pliant to succeed in a corrupt court, too 
insincere to command respect or confidence in a repub- 
lic." 2 Jefferson had long been at variance with him, 

1 John H. B. Latrobe and his Times 1803-1891 (1919), by John E. Semmes, II, 
177-181, 191-197, letter of Benjamin H. Latrobe, May 31, 1796; this account is 
not cited by Beveridge, who otherwise gives full quotations from contemporary 
writers as to Marshall's position at the Bar. Marshall, II. 

2 Aurora, June 12, 1800. 



182 THE SUPREME COURT 

and, writing to Madison in 1798, had said that his 
"lax, lounging manners have made him popular with 
the bulk of the people of Richmond, and a profound 
hypocrisy, with many thinking men of our country. 
But, having come forth in the plenitude of his English 
principles, the latter will see that it is high time to 
make him known." To Monroe he had written in 1800 
that "nothing should be spared to eradicate this 
spirit of Marshallism." ' Moreover, Jefferson had 
an especial ground for distrust of Marshall at this 
particular time ; for the report had become widely 
circulated, during the contest in Congress between 
Burr and Jefferson for the Presidency, that Marshall 
had given a legal opinion that Congress under certain 
contingencies might appoint a President, and it was 
rumored that the Chief Justice of the United States 
was to be selected. "We are told that the intention is 
to place the Chief Justice in the Presidential Chair 
and thai John Jay was recommended in the spirit 
and body of this plan," said one newspaper. 2 'There 



1 Jefferson, letter to Madison. Nov. tG, 1798; Works of Thomas Jefferson (ed. 
by A. (1. Lipscomb, 1908), XIX. letter »<» James Monroe," April 1*. 1800. Judge 
Story reported Jefferson «*is saying : "When convening \\ itli Marshall, I never admit 
anything. So sure as you admit any position to he good, no matter how remote 
from the conclusion he M-.-ks to establish, you are gone. So great is his sophistry 
you mu^t never give him an affirmative answer or you will be forced to grant his 
conclusion. Why. if lie were to ask me if it were daylight or not, I'd reply, 'Sir, 
I don't know, I ean't tell.' " I. iff of Rutherford Rirehard Hayes (1014), by Charles 
R. Williams, diary entry of Sept *<>. \HV\. 

2 Salem Qautte, Jan. 16, 1801. The Aurora, Jan. 10, 15, 1801, stated that in the 

event that the House of Re p r es entative! were unable to arrive at a choice by March 
4, 1801, some of the chief Federalists who had assembled at the house of Judge 
Chase in Baltimore had devised a plan to retain possession of the Government by 
a bill to put the Chief Justice in the Presidential Chair. Monroe wrote from Rich- 
mond, Jan. 6, 1801, to Jefferson: "Strange reports circulatory here . . . that 
Federalism means to commit the power by a Legislative act to John Marshall, 
Samuel A. Otis, or some other person till another election." On Jan. 18, 1801, 
he wrote : "It is said here that Marshall has given an opinion in conversation with 
Stoddard that in case 9 States should not unite in favor of one of the persons chosen, 
the Legislature may appoint a President till another election is made, and that 
intrigues are carrying to place us in that situation. This is stated in a letter from 






MARSHALL AND JEFFERSON 183 

has been much alarm at the intimation of such a pro- 
jected usurpation, and much consultation, and a spirit 
fully manifested not to submit to it," wrote Monroe 
to Jefferson on January 18, 1801, two days before 
Marshall's nomination as Chief Justice. These rumors, 
whether true or false, and the known fact that Marshall, 
while taking no active part, was not entirely averse to 
the election of Burr to the Presidency, very naturally 
increased the new President's personal prejudice against 
the new Chief Justice. l It is entirely probable also 
that Jefferson was aware of Marshall's personal views. 
'To Mr. Jefferson ... I have felt almost insuperable 
objections," Marshall wrote to Hamilton. "His for- 
eign prejudices seem to me totally to unfit him for the 
chief magistracy. ... In addition to this solid and 
immovable objection, Mr. Jefferson appears to me to 
be a man who will embody himself with the House of 
Representatives. By weakening the office of Presi- 
dent, he will increase his personal power. He will 

one of the representatives (I think Randolph) and has excited the utmost indig- 
nation in the Legislature." 

The Connecticut Coitrant, March 23, 1801, contained an account of an interview 
with James Hillhouse, late President pro-tem of the Senate, stating that these 
rumors as to projected action of Congress were utterly false and that he never 
heard of the plan reported by the Aurora, until the Aurora published it. 

1 See Marshall, II, 542. As to Marshall's views relative to the election and Burr, 
see articles Washington Federalist, Jan. 6, 21, 25, Feb. 6, 12, 1801, which it was 
generally supposed (and with some reason, as Beveridge believes) were either writ- 
ten or inspired by Marshall. 

The coolness existing between the Chief Justice and the President, after the 
latter's election, may be inferred from the following amusing reference. The 
Washington Federalist, quoted in Columbian Centinel, Aug. 29, 1801, stated : "There 
was such a gang of strange beings continually haunting the President's house, cry- 
ing More, More ! Give, Give ! that the President thought proper to decamp. 
The presence of the Chief Justice perhaps had some effect in hastening his depar- 
ture." The National Aegis, Dec. 12, 1801, charged Marshall with being "the 
malignant enemy of the President." The Aurora's Washington correspondent, 
March 8, 1805, describing Jefferson's second inauguration, wrote: "The President 
and Vice-President were sworn in today. The concourse of spectators was im- 
mense. Four of the Judges of the Supreme Court, Chief Justice Marshall, Cush- 
ing, Paterson and Washington ; and J observed that the Judge did not turn his back 
upon the President whilst administering the oath as he did this day four years ago." 



184 THE SUPREME COURT 

diminish his responsibility, sap the fundamental prin- 
ciples of the government. . . . The morals of the 
author of the letter to Mazzei cannot be pure." ' 

The newspapers of the country showed little interest 
and paid very slight attention to the appointment of 
Marshall. A leading Federalist paper, the Columbian 
Centinel, published only the following comment : "The 
assent of the Senate to the nomination of the Hon. 
Mr. Marshall to be Chief Justice of the United States 
was unanimous. We expect the Jacobins at some future 
period will deny having abused this gentleman also. ,, 
Of the leading Anti-Federalist papers, the Independent 
Chronicle noted the appointment without making any 
comment, and the Aurora printed only a brief sarcas- 
tic item: "The vacant Chief Justiceship is to be 
conferred on John Marshall, one time General, after- 
wards Ambassador to X, Y, Z, and for a short time 
incumbent of the office of Secretary of State." 2 

When the first Term to be held in the new city of 
Washington opened on February I, 1801, William dish- 
ing was the only Judge who had arrived : accordingly, 
the Court was adjourned, and it was not until February 
4 (after Samuel Chase of Maryland and Bushrod 

1 Hamilton (J. C. Hamilton's ed.). VI. letter of Jan. 1. 1801. It is singular 

that Marshall feared leet Jefferson would "weaken" the office of President, 
whereas the chief attack upon Jefferaon by the Federalists during the next eight 
yean was for his aggrandieemenl and usurpation of Eiecutive power. 

2 Columbian Crntinrl. Feb. 14, 1801; Aurora, Jan. 44. 1801. The Independent 

Chronirlr, Jan. SO, 1801, published ■ hostile paragraph directed al the Washington 
Federalist, a gaaette published "under the immediate patronage of General Mar- 
shall, the Secretary of State, which discharges ■ great deal of low abuse al Mr. Jeffer- 
son. . . . Who would think that John Marshall, OftCC *h»' fervent worshipper at 
the altar of Liberty, would become the abuser of Jefferson. Tis true, 'tis pity. 
Pity 'tis, 'tis true." The Aurora, April 80, 1801, referred to the Washington 
Federalist as "set up by John Marshall and supported by his credit in the banks 
of the Columbian District." 

James Callender, who had been indieted under the Sedition Act during Presi- 
dent Adams' Administration for a savage diatribe on the President, wrote in the 
Richmond Enquirer, Feb. 6, 1801 : "We are to have that precious acquisition, John 
Marshall, as Chief Justice. . . . The very sound of the man's name is an insult 
upon truth and justice." 



MARSHALL AND JEFFERSON 185 

Washington of Virginia appeared) that the session 
began and John Marshall took the oath of office. 
The installation of the new Chief Justice attracted 
no attention and was not described, or even noticed, in 
letters of the day or in the public press, the leading 
Washington newspaper printing only the following 
meager reference: ik The Justices of the Supreme 
Court have made a court, the following Justices 
being present, viz. Marshall, Cushing, Chase and 
Washington." l 

While no cases are reported as decided at this Term, 
it was marked, nevertheless, by a political episode which 
had a most potent effect upon the future history of the 
Court. On February 17, the long and closely con- 
tested balloting for President in the House of Repre- 
sentatives resulted in the election of Jefferson. Four 
days before that event, nine days after Chief Justice 
Marsluill took his seal on the Bench, and only three 
weeks before President Adams was to retire from office, 
the Federalist Congress enacted the Circuit Court 
Act of February IS, 1801, changing the entire Judi- 
ciary system of the United States. Had this measure 
been adopted at an earlier period and under less par- 
tisan auspices, there would have been strong arguments 
in its favor, for it brought about a reform long recog- 
nized as desirable. From the very outset of the 
Government, there had been much dissatisfaction with 
that provision of the Judiciary Act which required the 
Judges of the Supreme Court to sit in the United 

1 National Intelligencer, Feb. 5, 1801. James A. Bayard (then a Congressman 
from Delaware) in writing an account of the Term did not mention the new Chief 
Justice and said : "I was occupied two or three days, in the hours of Congressional 
leisure, in preparing myself for the argument of a cause in the Supreme Court of 
the United States — Silas Talbot v. Hans Fred Seaman. The cause went off, I 
have received three hundred dollars and in consequence will be obliged to return 
again next August. The Court was attended by several lawyers from Philadel- 
phia and the Maryland lawyers." James A. Bayard Papers (1915), letter of Feb. 
G, 1801. 



186 THE SUPREME COURT 

States Circuit Courts. The Judges had formally 
voiced their protests on several occasions. 1 The 
Attorney-General, and President Washington himself, 
had urged upon Congress the desirability of relieving 
the Judges of this duty. With this in view, President 
Adams, at the opening of the Sixth Congress in 1799, 
had strongly recommended such a revision and amend- 
ment of the Judiciary Act as " indispensably necessary." 
In accordance with the recommendation, a Committee 
of the House of Representatives was appointed, which 
reported a bill, March 11, 1800, said to have been 
prepared, the year before, by Hamilton. This bill 
justifiably alarmed the Anti-Federalists, for it provided 
for a division of the United States into twenty-nine 
districts, to each of which a new distinctive name was 
given, regardless of State names and State boundaries. 
"An attempt of an extraordinary nature to annihilate 
the State governments," they termed it. 2 Action on 
this bill having been postponed by the House, another 
measure, less radical in its nature, was reported, which 
passed the House, January c 20, 1801, relieving the 
Supreme Court of all Circuit Court duty, reducing 
the number of Judges to five and establishing six new 
Circuit Courts with sixteen separate Judges. The 
Anti-Federalists again received the measure with 
indignant hostility. They took the ground that the 
volume of business in the present Federal Courts did 
not warrant any such increase of judicial tribunals ; 
that the bill created a host of new Federal official 
positions to be filled ; 3 and that so great an increase of 

1 Amer. State Papers, Misc., I, 77; see supra, 8."}-90. 

' Life of Nathaniel Macon (1903), by William E. Dodd ; Aurora, March 24, 
April 17, 1800; Independent Chronicle, Oct. 27, 30, 1800; Connecticut Courant, Jan. 
*U, 1801. 

3 See interesting article by Max Farrand on The Judiciary Art of 1801, InAmer. 
Hilt. Rev. (1900), I, 682, controverting the statements of historians as to the 
obnoxious character of the statute. 



MARSHALL AND JEFFERSON 187 

Federal power was an infringement upon the rights of 
the States and another step towards the consolidated 
Government so long dreaded by them. 1 "We have 
been asked if we are afraid of having an army of 
Judges," said Senator Jackson of Georgia, in a debate. 
"For myself, I am more afraid of an army of Judges 
under the patronage of the President than of an army of 
soldiers. The former can do us more harm. They may 
deprive us of our liberties, if attached to the Executive, 
from their decisions, and from the tenure of office con- 
tended for we cannot remove them." 2 The Aurora said : 
"One of the most expensive and extravagant, the most 
insidious and unnecessary schemes that has been con- 
ceived by the Federal party is now before Congress 
under the name of the Judiciary Bill, but which might 
with greater propriety be called a bill for providing 
sinecure places and pensions for thoroughgoing Federal 
partisans." A prominent Massachusetts Anti-Federal- 
ist, Benjamin Austin, wrote: 3 "This extensive ma- 
chine, moving under the weight of a column of super- 
numerary Judges, attended with the immense expense 

1 Fisher Ames, the most conservative Federalist, had written, Dec. 29, 1799 : 
"The steady men in Congress will attempt to extend the Judiciary Department. . . . 
There is no way to combat the State opposition, but by an efficient and extended 
organization of Judges, magistrates and civil officers," quoted in Harrison Gray 
Otis (1903), by Samuel E. Morison, I, 202. Alexander Hamilton, in a letter to 
Jonathan Dayton, in 1799, had advocated an even greater extension of the Federal 
Judiciary, saying: "Amidst such serious indications of hostility, the safety and the 
duty of the supporters of the government call upon them to adopt vigorous meas- 
ures of counteraction. . . . Possessing, as they now do, all the constitutional powers, 
it will be an unpardonable mistake on their part, if they do not exert them to sur- 
round the Constitution with more ramparts and to disconcert the schemes of its 
enemies. The measures proper to be adopted. . . . First, establishments which will 
extend the influence and promote the popularity of the government. . . . The 
extension of the Judiciary system ought to embrace two objects; one, the subdi- 
vision of each State into small districts (suppose Connecticut into four, and so on 
in proportion) assigning to each a Judge with a moderate salary; the other, the 
appointment in each county of conservators or justices of the peace with very 
ministerial functions and with no other compensation than fees for the services 
they shall perform." Hamilton, X, 329. 

2 7th Cong., 1st Sess., 47. 

3 Aurora, Jan. 21, 1801 ; Independent Chronicle, Dec. 24, 1801. 



188 THE SUPREME COURT 

of their establishments, it is feared would ultimately 
reduce the people to the utmost state of irritation." 
The chief alarm of the Anti-Federalists, however, was 
over the fact that all these positions would probably 
be filled with Federalists by President Adams before 
he went out of office. They soon found their worst 
fears fully realized. The bill was enacted into law 
on February 13, 1801 ; within thirteen days, Adams 
sent to the Senate a complete list of nominations for 
the new Judgeships, chosen practically entirely from 
members of his own party ; and by March c 2, the Senate 
had confirmed the last name. 1 The appointment of 
these Judges who, from the fact that many of the 
commissions wen 4 filled out on the last day of Adams' 
term of office, became derisively known as the "Mid- 
night Judges", naturally caused intense indignation 
to Jefferson and all bis party. The criticism in the 
Republican newspapers was widespread and savage. 
That "Mr. Adams is laying the foundation of future 
faction and his own shame" was the common comment. 
"The close of Mr. Adams' Administration was marked 
with all the folly and wickedness that it was ever 
distinguished for," wrote Wilson C. Nicholas to John 
Breckenridge of Kentucky. 'The Judiciary hill has 
been crammed down our throats, without a word or a 
letter being suffered to he altered," wrote Stevens 
Thomson Mason. "A new Judiciary system has 
been adopted with a view to make permanent provision 
for such of the Federalists and Torie> as cannot hope 

1 For the Federalist view of the merits of this statute, we letters of Robert Good- 
loe Harper, May 1(5, 1800. Feb. 26, 1801. Jamst A Bayard Papers (191.5). For 
list of the "Midnight Judges" see Amrr. fan /,'. j .. \. M)f; History of Amcnran 
Bar (1911), by Charles Warren. .T>^. Of the sixteen Circuit Judges, lb were pro- 
moted from the position of District Judge, and to the vacant District Judgeships 
thereby created, three Senators and one R ep r ese ntative were named. Two 
Representatives also were appointed as District Attorneys in place of two of these 
officials who were appointed as Judges. The Judiciary Art of 1801, by Max Far- 
rand. Amer. Hist. Rev. (1900), [; Aurora, Feb. it, 1801. 



MARSHALL AND JEFFERSON 189 

to continue in office under the new Administration. 
Among these, John Marshall and Charles Lee are 
provided for; Marshall's brother-in-law is also nom- 
inated, and I expect some of his Kentucky connections 
will be remembered when the nominations are made." 
"It is a law which may be considered as the last effort 
of the most wicked, insidious and turbulent faction 
that ever disgraced our political annals," wrote another 
correspondent from Kentucky, " the ne plus ultra of 
an expiring faction to enthral the measures likely to 
be pursued by the new Administration, and to serve 
as one of the principal cogs in the wheel of consoli- 
dation." 1 One feature of the statute was regarded by 
President-elect Jefferson as aimed directly at himself 
and as an intentional diminution of his powers, namely, 
the reduction of the number of the Court from six to 
five, by providing that when the next vacancy occurred 
it should not be filled. As Judge Cushing, who was 
an elderly man and in extremely bad health, might 
naturally be expected to resign within a short time, 
the restriction on his replacement by Jefferson bore, 
quite reasonably, the aspect of an attempt to keep the 
Court wholly Federalist. 

On March 4, 1801 (after twelve years of Federalist 
administration), political control of the United States 
passed into the hands of the Anti-Federalist party 
(now becoming known as Republican). 'The Admin- 
istration of Mr. Jefferson will be that of Reason and 
Virtue. The time seems to have returned when 
Republicanism, pure and undefiled, will evince its 
infinite value to social felicity," wrote Bishop James 



1 Breckenridge Papers MSS, letters of Nicholas, April 15, 1801, Mason, Feb. 12, 
29, 1801, James Hopkins, Feb. 18, March 27, 1802. Salem Register, Feb. 4, 1812: 
"This celebrated act was scrambled into the House and hurried out as a law, to 
the disgrace of its framers." 



190 THE SUPREME COURT 

Madison of Virginia to John Breckenridge. * But 
while in possession of the Executive and Legislative 
branches of the Government, the Republicans had no 
representative whatever in the Judicial branch, and 
such exclusion had a profound effect upon the history 
of the country. As has been seen, the distrust of the 
United States Courts by the Anti-Federalists had 
been rapidly increasing during the past years ; and the 
decisions and actions of the Judges, adverse to prac- 
tically every cardinal Anti-Federalist doctrine, and 
supporting the political tenets of the Federalist party, 
had gradually caused them to regard these Courts 
as a mere annex of that party. The Anti-Federalists 
had favored the confiscation of British debts ; the 
United States Courts had denied the validity of State 
confiscation and had enforced the payment of these 
debts. The Anti-Federalists had opposed the carriage 
tax of President Adams, claiming it was a direct tax 
and unconstitutional ; the United States Courts had 
sustained the tax. 2 The Anti-Federalists had been 
pro-French and unneutral ; the United States Courts, 
on the other hand, persistently upheld their juris- 
diction to enforce the international obligations of 
this country as a neutral. The United States Courts 
had sustained the English common law denying the 
right of expatriation — a doctrine which was anathema 
to the anti-English party in the United States. The 

1 Breckenridge Papers MSS, letter of May 26, 1801. 

2 As was said in the Columbian Centinel, Feb. 4, 11, 1801, in articles explaining 
hostility to the Judiciary : "The State Courts invariably decided against the recov- 
ery of British debts due from the people of Virginia. As soon as the Federal 
Courts met, British debts were (as they ought to have been) recovered. Is it 
strange that the Southern Jacobins should hate the Judiciary of the United 
States?" "They opposed the carriage tax as unconstitutional. Why?" asked 
the Centinel sarcastically. "Because the democratic Lords of Virginia had ten 
carriages where the aristocratic husbandmen and yeomen of New England one." 
For the effect of the carriage tax, see especially debate in the House, March 18-22, 
1802. 7th Cong., 1st Sess. 



MARSHALL AND JEFFERSON 191 

action of the United States Courts in asserting a 
jurisdiction to try persons indicted at common law 
was regarded by the Anti-Federalists as an extension 
of Federal authority and a prostration of State sover- 
eignty not to be tolerated. Beyond all else, the 
upholding of the constitutionality of the Alien and 
Sedition laws by the Judges on Circuit had aroused 
the furious indignation of the Anti-Federalists, and 
had led them to charge that the Judiciary was merely 
a tool of the Federalist Executive and Legislature. 
"The Federal Judges were partial, vindictive, and 
cruel," the Anti-Federalrst papers stated. "They 
obeyed the President rather than the law, and made 
their reason subservient to their passion." * "The 
Courts in this State (Pennsylvania) and the States 
Northward and Eastward are stretching the doctrines 
of treason and sedition to a most extraordinary length," 
wrote Mason to Monroe. "They seem determined to 
suppress all political enquiry, conscious that the 
conduct of their friend J. A. cannot stand a fair scru- 
tiny." The political charges to the Grand Jury 
indulged in by the Judges had given great offense 
to the Anti-Federalists ; and the appointments of two 
Chief Justices on foreign missions had induced a fear 
lest by this means the Judiciary was being subjected 
to the direction of the Executive. Moreover, the 
Anti-Federalists had been justly alarmed at the de- 
mands for centralization of Government voiced by 
their opponents in connection with the Judiciary; 
for since the Presidential campaign of 1800, the Feder- 
alist newspapers had been filled with articles demand- 
ing extension of the "protecting powers of the Federal 

1 American Citizen, April 23, 1803 ; Monroe Papers MSS, letter of Stevens 
Thomson Mason to James Monroe, April 29, 1800, in which the trial of Thomas 
Cooper was termed a "cruel and abominable persecution." 



192 THE SUPREME COURT 

Judiciary" to the fullest limits authorized by the 
Constitution. "The Judiciary is the most important 
branch of the Government in relation to its effects 
on the habits and feelings of people. ... If free 
governments can ever be maintained without a stand- 
ing army, it can only be effected by a firm, independent 
and extensive Judiciary which shall bring the author- 
ity of the law home to the fireside of every individual," 
said one. "It is necessary to strengthen the Govern- 
ment in the affections of the people by multiplying 
Federal Courts ; the State Courts are more or less 
infected with Anti-Federalism ; in the extension of the 
Federal Courts lies the safety of the Federal Govern- 
ment," said another. 1 

Such being the many, and in some cases, well- 
grounded causes of apprehensions entertained by the 
Anti-Federalists, it was natural that they should regard 
the erection and appointment of the new Judiciary 
under the Circuit Court Act of 1801 as merely another 
attempt to intrench the Federalist party, and to 
propagate Federalist political principles by means of a 
new set of Judges. 

They were convinced that the Federalists, having 
lost the election, were making a last desperate effort 
to retain a remnant of power in the judicial branch 
of the government, and they could quote Federalist au- 
thority for this belief. "Harper boasts that it (the Cir- 

1 See Columbian Centinel, Jan. 14, 31, Feb. 4, 7, 18, 1801, articles by "The Con- 
sistent Federalist", saying: "Unhappily a mistaken timidity and a disposition, 
too prevalent during the first years of the existence of our government to conciliate 
the opposition, led the First Congress not to invest the Federal Judiciary with the 
powers which the Constitution authorized them to bestow. The error has been 
deeply felt and sincerely lamented. The Judiciary, the most imposing, authori- 
tative and generally the most popular branch, has been scarcely felt. It only 
appears now and than as a phenomenon which the people gaze at, but which they 
consider as a foreign intruder rather than the 'venerable image of their country's 
honor.' The principle of Federalism has ever been, and yet is, to extend the force 
and influence of the Judiciary to all the cases which are enumerated in the Con- 
stitution." See also Washington Federalist, Jan. 26, 28, 30, 1801. 



MARSHALL AND JEFFERSON 193 

cuit Court Act) is as good to the party as an election," 
a Washington correspondent of the A ur or a had writ- 
ten; and General Harry Lee had said that "it is the 
only resource which the Government would have to 
secure strength, since the standing army could not be 
retained." Regarding this measure, therefore, as a 
mere partisan move, Jefferson and his party leaders 
were determined upon its/epeal as soon as the new Con- 
gress should convene. Within ten days after his in- 
auguration, Jefferson wrote that the principal Federa- 
lists "have retreated into the Judiciary as a stronghold, 
the tenure of which renders it difficult to dislodge them." 
Within three weeks after his inauguration, he wrote 
that while the Supreme Court was "so decidedly Fed- 
eral and irremovable", the new Circuit Judges would 
remain in office only until the recent statute could be 
repealed ; and later, he wrote that such action was 
necessary, since "the Federalists have retired into the 
Judiciary as a stronghold . . . and from that battery 
all the works of republicanism are to be beaten down 
and erased." And Jefferson's views were echoed by 
William B. Giles, who wrote that the Federalists "saw 
their doom approaching" and selected the Judiciary 
Department "in which they could entrench themselves. 
. . . The Judiciary has been filled with men who had 
manifested the most indecorous zeal in favor of the 
principles of the Federal party." Others of his party 
associates warmly supported his intended course. 
"It is generally expected," wrote Elbridge Gerry to 
Jefferson as early as May, 1801, "that among the first 
acts of the next Congress will be a repeal of the ex- 
traordinary judicial bill, the design of which was too 
palpable to elude common observation." x "What con- 

1 Aurora, Feb. 28, 1801 ; speech of Giles, 7th Cong., 1st Sess., 581, 590 ; Jefferson, 
IX, letters to Joel Barlow, March 14, 1801, and to Giles, March 23, 1801 ; Writings 

VOL. I — 7 



194 THE SUPREME COURT 

cerns us most," wrote Giles, in June, is "the situation 
of the Judiciary as now organized. It is constantly 
asserted that the revolution is incomplete, as long as 
that strong fortress is in possession of the enemy ; and 
it is surely a most singular circumstance that the pub- 
lic sentiment should have forced itself into the Legis- 
lative and Executive Department, and that the Judi- 
ciary should not only not acknowledge its influence, 
but should pride itself in resisting its will, under the 
misapplied idea of 'independence.' . . . No remedy 
is competent to redress the evil but an absolute repeal 
of the whole Judiciary system, terminating the present 
offices and creating a new system, defining the common 
law doctrine and restraining to the proper constitu- 
tional extent the jurisdiction of the Courts." * 

Before the next Congress met, however, three addi- 
tional episodes occurred in connection with the Judi- 
ciary which strongly reinforced this determination of 
Jefferson and the Republicans to effect a change in the 
judicial system and to curb the power of the Courts. 

of Thomas Jefferson (H. A. Washington's ed.), letter to Dickinson, Dec. 19, 1801; 
Some Letters of Elbridge Gerry, 178^-180^ (1896), letter of May 4, 1801, Feb. 18, 
1802, "The Adams Judiciary was created for party purposes." Independent 
Chronicle, Nov. 25, 1801. "Among the causes which have sunk the anglo-federal 
party into contempt and disrepute is the dislike and abhorrence to independent 
Judges", Aurora, June 18, 1800. See also Times and Alexandria Advertiser (Va.), 
Dec. 15, 1798. 

1 Jefferson Payers MSS, letter of Giles, June 1, 1801 ; William Branch Giles 
(1914), by Dice Robins Anderson. See Office Seeking during Jefferson s Adminis- 
tration, by Gaillard Hunt, in Amer. Hist. Rev. (1898), II, quoting a letter from an 
influential man in Charleston, S. C, to Jefferson, July 24, 1801 : "As a party the 
Federalists are not formidable ; they are composed of trifling lawyers, men swoln 
with pride, ignorance and impudence, fellows thirsting for gain . . . and all the 
tories and their descendants. The Judiciary is also inimical, but I fear the only 
purifier of this engine is time ; as the Judges die off, the Government must be care- 
ful to replace honest men in the room of the present set of flexible gentry; until 
these desirable events take place, they must be watched well." "In our state of 
society, the ' friends of order ' calculate on many other barriers to republicanism 
viz., a majority of the Senate, all the Federal Judges and most other officers of the 
United States on their side." Oration delivered in Wallingford, March 11, 1801, 
before Republicans of the State of Connecticut at Their General Thanksgiving for the 
Election of Thomas Jefferson (1801), by Abraham Bishop. 



MARSHALL AND JEFFERSON 195 

The first of these episodes was an extraordinary move 
on the part of two of the Judges of the new Circuit 
Court for the District of Columbia at their first session 
in June, 1801, in instructing the District Attorney to 
institute a prosecution for libel against the editor of 
the Administration paper, the National Intelligencer, 
because of its publication of a letter signed by "A 
friend to impartial justice", containing a gross attack 
on the Judiciary. 1 As both of these Judges, William 
Cranch and James M. Marshall, were Federalists ! 
and among President Adams' late appointments, and 
as William Kilty, the Republican Chief Justice of the 
Court, refused to join in the action, the case at once 
assumed a political character. The Republican Dis- 
trict Attorney whose views, as he informed the Court, 
were "inimical to the interposition of the Court", de- 
clined to have anything to do with the business further 
than, as the officer of the Court, to hand the paper in 
question to the Grand Jury and to express to it the 
sentiments of the different members of the Court as 
well as his own. That the letter in question contained 
extremely violent and false views as to the Federal 
Judges was clear, but that it also fairly represented 
beliefs very generally entertained by the Republicans 
was also indubitable. " Our Courts with scarcely an 
exception," said the writer, " have been prompt to 
seize every occasion of aggrandizing Executive power, 
of destroying all freedom of opinion, of executing un- 
constitutional laws, and of inculcating by the wanton 

1 As to details of this episode hitherto unnoted by historians, see National Intel- 
ligencer, June 12, Nov. 18, 1801 ; Aurora, Oct. 28, 1801 ; Columbian Centinel t 
July 6, 1801 ; Independent Chronicle, June 25, July 9, Sept. 7, 14, Nov. 5, 9, 1801 ; 
Boston Gazette, Sept. 10, 1801. The Boston Gazette, July 20, 1801, and the Columbian 
Centinel, July 22, 1801, stated that the author of the libel was one of Jefferson's 
new appointees as United States Attorney. A writer in the Charleston Gazette 
stated that it is "said to have been written by a Secretary of State to shield you 
(Jefferson) from the indignation of an injured people." See Connecticut Courant, 
Aug. 17, 1801. 



/ 

/ 



196 THE SUPREME COURT 

and unsolicited diffusion of heterodox policies the doc- 
trines of passive obedience and non-resistance." He 
pointed out that, though the people had in the late elec- 
tion shown their disapproval of Federal policies, the 
Federal Judges had shown their hostility to any change ; 
and he pictured the condition which Jefferson found on 
coming into office, "the bias of preconceived and per- 
haps immutable ideas possessed by the Judges, ideas 
which, not confined exclusively to a devotion to cer- 
tain political tenets, involved in their wide range strong 
personal regards and antipathies. . . . He found the 
asylum of justice impure ; there where reason and truth, 
unagitated and unimpaired even by suspicion, ought 
to preserve a perpetual reign, he contemplated the 
dominance of political and personal prejudice, habit- 
ually employed in preparing or executing party ven- 
geance." In demanding prosecution for such senti- 
ments, Judge James M. Marshall from the bench 
stated that "he was a friend to the freedom, but an 
enemy to the licentiousness of the press ; that the 
printers in this country, on both sides of the politics 
which agitated the public mind, had taken the most 
unwarranted liberties, and descended to the most 
shameful scurrility and abuse; it was difficult to say 
on which side of the question they had been the most 
abusive ; and that so long as he remained upon the 
Bench, it should be his particular care to restrain these 
abuses on the one side or the other/' l To the demand 
of the Judges, the Grand Jury responded by return- 
ing a presentment of the editor. Finally, after a dec- 

1 See Connecticut Courant, Aug. 17, 1801, quoting letter in Charleston Gazette 
addressed by "Americanus" to Jefferson: "The serious charges of corruption 
exhibited against our National Judges by that publication are in a proper train 
of investigation. It is devoutly to be wished that the publisher may be- punished 
and the author detected. If the latter should be found to be among your civil 
advisers, it will be a tribute of respect to the Judiciary to discard him from your 
privy council." 



MARSHALL AND JEFFERSON 197 

lination by the District Attorney to comply with an 
order of the Court directing him to take further steps, 
and after a refusal of the Grand Jury to indict in Sep- 
tember, the matter was dropped. This episode con- 
firmed Jefferson and his party in their view that the 
Federal Judges were determined to maintain all the 
old obnoxious features of the Federalist policies. As 
the detested Sedition Act was no longer in existence, 
the proceeding for libel in this case had been instituted 
under the common law. Since it was highly doubt- 
ful whether the article constituted criminal libel even 
at common law, Jefferson considered the action of the 
Court to be a pure usurpation. And another promi- 
nent Virginian wrote : "It would seem that the 'friends 
of order', being beaten out of Executive and Legisla- 
tive forts, are about to man their cannon en barbette and 
play upon all the Republicans from the Gibraltar of 
the Judiciary Department. ... It seems an absurd- 
ity that the Courts of the United States should have 
any check or control, in the least degree, over the press 
or the opinions of citizens or others respecting the Pres- 
ident, Congress, Judiciary, the Constitution, or, in 
short, respecting any subject whatever. From the 
nature of the Government of the United States, it 
cannot stand in need of any restriction of the freedom 
of the press, and as, on the one hand, it cannot stand 
in need of these powers claimed by the Judiciary, so, 
on the other, they cannot be entrusted with them and 
be enabled thereby to extend these powers and gratify 
the wishes of the Legislative and Executive to whom 
they may look up for the rewards of their obsequious- 
ness." l The Republican newspapers treated the af- 
fair as an example of Federalist partisanship, and one 
asked : "Can any candid men have any further doubts 

1 National Intelligencer, Nov. 18, 1801. 



198 THE SUPREME COURT 

as to the object which was intended by the new Judi- 
ciary system?" Another said that "these things are 
not without their use as they may tend to correct the 
abuse of justice in the end." 

Closely following this attempt of the new Judges 
appointed by President Adams to enforce a doctrine 
objectionable to the views of President Jefferson, 
another episode occurred in September, 1801, which 
again irritated Jefferson against the Judiciary. In 
the United States Courts in Connecticut, proceedings 
had been instituted for the condemnation in prize 
proceedings of an armed French ship, the Schooner 
Peggy, captured during the hostilities with France in 
April, 1800. Owing to the fact, however, that the re- 
cent treaty, negotiated with that country by Chief 
Justice Ellsworth and ratified in the closing days of 
the Adams Administration, contained a provision that 
captured ships not definitively condemned should be 
returned to their owners, Jefferson, soon after coming 
into office, had directed the United States Attorney, 
Pierpont Edwards, to cause the proceeds of the sale of 
the schooner, then in the custody of the Clerk of the 
United States Court, to be paid over to the French claim- 
ants. The Clerk had refused to comply and had asked 
the new Circuit Court to pass an order regarding these 
proceeds, whereupon (as stated in the newspapers of the 
day) " Mr. Edwards interposed and read to the Court the 
order above alluded to, which he had received from the 
President. Mr. Griswold, who was professionally en- 
gaged in this business, observed to the Court that the 
Constitution and laws had prohibited all appropria- 
tions of money by the President; he therefore did 
not comprehend the principle on which the order of 
the President was founded and strongly insisted that 
by law the money in question must be paid into the 



MARSHALL AND JEFFERSON 199 

treasury of the United States. The Court unanimously 
acceded to this doctrine and gave directions accord- 
ingly. After reading the order to the Court, Mr. Ed- 
wards passed over the subject sub silentio" While 
the action of the Circuit Court was undoubtedly cor- 
rect, and while the Presidential order was utterly in- 
valid, the refusal to recognize his authority was re- 
garded by Jefferson as a political move on the part of 
Adams' Judges, especially since it became the subject 
of comment in the Federalist party organs who exulted 
over the defeat of "executive usurpation." x That 
the United States Courts, however, were determined to 
maintain their independence of the Executive, whether 
Federalist or Republican, had been made plain at the 
August Term of the Supreme Court in this same year 
at the argument of Ship Amelia, Talbot v. Seaman, 
1_ Cranch, 1. In this case, involving the right to sal- 
vage by an American vessel which had recaptured a 
neutral vessel previously captured and armed by the 
French, in order to prove the legality of the recapture, 
James A. Bayard, counsel for the claimants, had offered 
to read the instructions of President Adams constru- 
ing the statute passed by Congress authorizing hostil- 
ities by American ships. To the reading of this paper, 
all the Judges were opposed, and Judge Paterson stated 
that he had "no objection to hearing them, but they 

1 New York Evening Post, Jan. 22, 1802. See also New York Commercial Adver- 
tiser, "To the President", No. XVIII; Connecticut Courant, Jan. 18, 1802, which 
said: "Your directing the prize money of the French Schooner Peggy condemned 
in the Circuit Court in Connecticut to be released to the claimant was held by the 
Court to be illegal ; the Court disobeyed the order and decreed the money to be 
paid into the Bank of the United States for the public benefit." 

In United States v. Schooner Peggy, 1 Cranch, 103, at the December Term in 
1801, the Supreme Court held that Jefferson's construction of the treaty as applied 
to the facts in this case was correct, and that by the decree of the Circuit Court 
the vessel was not "definitively condemned", and that it should be returned to its 
French owners; see also Attorney-General Lincoln's opinion to the contrary, 
June 17, 25, 1802, Ops. Attys.-Gen., I, 114, 119. As to this episode, see also letters 
of Gallatin to Madison, June 9 ; Madison to Pichon, July 19 ; Gallatin to Hamil- 
ton, Aug. 13, 1802, Hamilton Papers MSS. 



200 THE SUPREME COURT 

will have no influence on my opinion. . . . We are 
willing to hear them as the opinion of Mr. Bayard 
but not as the opinion of the Executive." ! 

The third episode which confirmed Jefferson's belief 
that the United States Courts were determined to 
thwart him politically occurred at the December Term 
in 1801, when, ten days after the Court convened, 
there was presented in an original suit a petition for 
a rule to show cause why a writ of mandamus should 
not be granted to require James Madison, Secretary of 
State, to deliver certain commissions as justice of 
the peace to William Marbury of Washington, and 
Dennis Ramsay, Robert R. Hooe and William Harper 
of Alexandria. The circumstances giving rise to this 
famous case of Marbury v. Madison are well known. 
A week before Jefferson became President, the organic 
Act of the District of Columbia had been passed, Feb- 
ruary 27, 1801, providing for the appointment by the 
President of justices of the peace for the counties of 
Washington and Alexandria. On March c 2, President 
Adams proceeded to appoint twenty-three for the 
former county and nineteen for the latter, and the Sen- 
ate confirmed them all, on March 3. The commis- 
sions had been made out in the office of the Acting 

•This was the <ml\ caee (appearing in Crunch's Report*) decided .'it the August 
Term; it had been argued Aug. 11, It, 18, 1800, but postponed by the Court, 
Aug. 14, 1800, for Further argument. See 4 Dallas, 84. The newapapen very 

generally published I Ik- opinion of the Court in full. See Aurora, Aug. £1, 1801. 
One other caM argued a1 this Term (but not decided until the succeeding Decem- 
ber Term), Wilson v. Mason, 1 ('ranch. t.">0, was notable for the fact that one of 
the counsel, Joseph Hamilton Daveiss of Kentucky, was the first lawyer to appear 
before the Court from west of the Alleghany Mountains. " His eloquent pres- 
entation of this case won the admiration of Chief Justice Marshall and gave him 
a standing among the foremost lawyers." He had been appointed by President 
Adams as United States Attorney in Dece mb er , 1800, and was removed by Jef- 
ferson in 1807. In 1803, he married Marshall's sister Ann. See Quarter!;/ Pub. 
of the Hist, and Phil. Soc. of Ohio (1917), XII; and for an extraordinarily vivid 
description of his appearance in Washington in 1801, see Bench and liar or Digest 
of the Wit, Asperities and Amenities of the Bar (1857), by L. J. Bigelow, Harper's 
Weekly, April 27, 1867. 



MARSHALL AND JEFFERSON 201 

Secretary of State (John Marshall himself), carried 
to the President for signature, and returned to the Act- 
ing Secretary of State who had affixed to them the seal 
of the United States. 1 Of these commissions, however, 
at least four had not been delivered when President 
Adams' term of office expired at midnight on March 3, 
1801 ; and President Jefferson on coming into office 
at once ordered that these commissions should be with- 
held. "The nominations crowded in by Mr. Adams 
after he knew he was not appointing for himself," 
he wrote, "I treat as mere nullities. His best friends 
do not disapprove of this " ; and again he denounced 
these "new appointments which Mr. A. crowded in 
with whip and spur from the 12th of Dec. when the 
event of the election was known . . . until 8 o'clock 
of the night at 12 o'clock of which he was to go out of 
office. This outrage on decency should not have its 
effect, except on the life appointments which are ir- 
revocable." 2 While a large number of the justices 
chosen by Adams received reappointments from Jef- 
ferson, four of those who were not so favored determined 
to test his legal right to withhold their commissions, 

1 A letter from a Republican Congressman in the Aurora, Dec. 30, 1801, states: 
"The commissions had been made out in blank, and subscribed by Mr. Adams 
before the nominations were made to the Senate. The Senate, however, agreed 
to the nominations, but the third of March was not long enough to allow the com- 
missions to be entered on record in the office of the Secretary of State or to be for- 
warded to the nominees." 

It is a singular fact that Marshall acted as Secretary of State for President Jef- 
ferson at the latter's request. See letters of March 2, 4, 1801, Political and Eco- 
nomic Doctrines of John Marshall (1914), by John R. Oster. 

2 Jefferson, IX, letters in 1801 of March 23, to W. B. Giles, March 24, to W. B. Giles, 
March 24, to W. Findley, March 24, to Benjamin Rush, March 27, to Henry Knox, 
March 29, to Elbridge Gerry, March 29, to Gideon Granger. Jefferson wrote to 
Mrs. John Adams, June 13, 1804 : " I can say with truth that one act of Mr. Adams' 
life, and one only, ever gave me a moment's personal displeasure. I did consider 
his last appointments to office as personally unkind. They were from my most 
ardent political enemies. ... It seemed but common justice to leave a suc- 
cessor free to act by instruments of his own choice." See also especially History of 
the Office of Justice of the Peace in the District of Columbia, by Charles S. Binney, 
Columbia Historical Society Records (1902), V. Jefferson's generosity in reappointing 
so many of Adams' choice was praised in the National Intelligencer, March 23, 1801. 



202 THE SUPREME COURT 

and accordingly instituted petitions for mandamus. 
The proceedings, which took place in Court on Decem- 
ber 21, 1801, when Charles Lee (formerly Attorney- 
General under Adams) presented his preliminary mo- 
tion for a rule to show cause, were described in lively 
fashion from the Republican point of view by the 
Washington correspondent of the Aurora: l "Mr. Lee 
entered very largely into a definition of the powers 
of the Court, and of the nature of mandamus which he 
described as a species of appeal to a superior for redress 
of wrong done by an inferior authority. The Chief 
Justice (J. Marshall, the ci-dcrant XYZ ambassador) 
asked if the Attorney-General was in Court, and had 
anything to offer. Mr. Lincoln (Attorney-General) 
replied that he had no instructions on the subject. 
The Secretary of State had received notice on the pre- 
ceding day, but he could not in the interval have turned 
his attention effectually to the subject. He would 
leave the proceedings under the discretion of the Court. 
The Chief Justice, after consultation, found none of 
the Bench ready but Judge Chase (the same who 
presided and decided in Mr. Cooper's case) who said 
if the attorney (Mr. Lee) would explain the extent of 
his evidence and lay it before the Court in form, he 
would give his opinion instantly. Some conversa- 



1 Aurora, Dec. 22, 1801. A detailed account <>f the institution of Mnrkuri/ v. 
Madison was published in all the leading Federalist papers, stating the fact, as 
follows: "From the press of busioeei which U imial at the close of every ■ 
of Congress and which a variety of causes made particularly 10 at the last M 
the attention of the Secretary and the clerks WSJ engaged by more important con- 
cerns, the commission^ were ssglected for several days and were at length abandoned 
to the honor and integrity <>f the new Administration. The appointment! were 
in the meanwhile published in the papers. It is said that it was among the first 
acts of the new President to stop the iaming of all commission! from the office. 
We forbear making any remarks or entering more into detail, until the Supreme 

Court have acceded to the above motion which it is expected will be today." New 
York Evening Port, Dec. 28, 1801 ; Connecticut Courant, Jan. t. 1802. The Colum- 
bian Centinel, in Boston. April 2, lsoi, attacked Jefferson for his "impudeno 
illegally detaining the commissions. 



MARSHALL AND JEFFERSON 203 

tion took place on the etiquette of sealing and record- 
ing commissions, and Mr. Lee said the law spoke big 
words and that the act of recording, under his experi- 
ence of the Secretary's office, was esteemed done when 
a copy was delivered for entry, and that the copy re- 
mained sometimes six weeks unentered, but was still 
considered as recorded. The Court did not give any 
opinion, but Mr. Lee proposed to amend his affidavits 
by a statement thai the great seal had been actually 
affixed to the commissions. The tories talk of drag- 
ging the President before the Court and impeaching 
him and a wonderful deal of similar nothingness. But 
il is easy to perceive thai it is all fume which can ex- 
cite no more than a judicious irritation." After one 
day's consideration, the Court granted this preliminary 
motion for a rule to show cause and assigned the fourth 
day of the next Term for the argument of the question 
whether the petitioners were entitled at law to the is- 
sue of a writ of mandamus. 'The Court engaged in 
a curious discussion which has terminated in a decision 
which is considered as a bold stroke against the Execu- 
tive authority of the Government," wrote a Republi- 
can Congressman to James Monroe. "It is supposed 
that no further proceedings will be had ; but that the 
intention of the gentlemen is to stigmatize the Execu- 
tive, and give the opposition matter for abuse and 
vilification. The consequences of invading the Execu- 
tive in this manner are deemed here a high-handed ex- 
ertion of Judiciary power. They may think that this 
will exalt the Judiciary character, but I believe they 
are mistaken." * 

1 National Intelligencer, Dec. 21, 1801 ; Monroe Papers MSS, letters of Stevens 
Thomson Mason, Dec. 21, 1801, and John Breckenridge, Dec. 24, 1801 ; Colum- 
bian Centinel, Nov. 28, Dec. 5, 19, 1801; Aurora, Nov. 20, Dec. 30, 1801. "The 
Tory prints begin to be alarmed about the Judiciary of John Adams' manufacture, 
and as usual, begin to preach up the regal doctrine of perpetuation in office. We 
hope shortly to see the whole system altered." 



204 THE SUPREME COURT 

Although on December 8, 1801, two weeks before this 
action of the Court, Jefferson in his first message to 
Congress had made a mild reference to a reform of 
the judicial system, no final decision had been reached 
as to a repeal of the Circuit Court Act of 1801. It 
was not until the Court decided to take the prelimi- 
nary step in this mandamus case that Jefferson became 
convinced that it was seeking to interfere with his 
Executive functions and thai the growing pretensions 
of the Judiciary must be curbed. On December 24, 
1801, John Breckenridge, Senator from Kentucky 
(who later became Jefferson's Attorney-General), wrote 
to Monroe : "What think you of the rule entered upon 
the Federal Court last week against the Secretary of 
State to show cause? ... I think it the most dar- 
ing attack which the annals of Federalism have yet 
exhibited. I wish the subject of the Courts to be 
brought forward in the Senate 4 next week"; and Stev- 
ens Thomson Mason wrote to Monroe: "An attempt 
has been made by the Judiciary to assail the Presi- 
dent (through the sides of Mr. Madison). . . . The 
conduct of the Judges on this occasion has excited a 
very general indignation and will secure the repeal of 
the Judiciary Law of the last session, about the propri- 
ety of which some of our Republican friends were hesi- 
tating." At first, there had been considerable doubt, 
even among Republicans, as to the legality of such a 
repeal, but Breckenridge was finally convinced by a 
letter from John Taylor of Virginia, written on Decem- 
ber 22; and on January (>, 180% he moved in the Sen- 
ate the repeal of the obnoxious law. 1 That the Repub- 
licans regarded (and with considerable foundation for 

1 It appears, however, that before- the d.ite <>f Jefferson's Menage, John Hreek- 
enridge had been in reeeipt of numerous letters from his Kentucky constituent* 
urging repeal off the Circuil Court \<is. See tn/ro, SSI. Brerkenndqc Papers MSS; 
Judicial Tenure in the United States (1918), by William S. Carpenter. 



MARSHALL AND JEFFERSON 205 

the belief) the institution of mandamus proceedings 
in the Marbury Case as a purely political move on the 
part of the Federalist Party, and as an effort to scare 
off their opponents from attempting to repeal the Judi- 
ciary Law, is very clearly shown in a letter from a Wash- 
ington correspondent, written within five days after 
the repeal bill was introduced. 1 "The debate has at- 
tracted considerable attention," he wrote, "but as its 
importance may not be seen in its true political light, I 
think it proper to tell you that the late mandamus busi- 
ness in the Supreme Court was calculated expressly 
with a view to deter from any attempt to repeal this 
law. The question on the mandamus first appeared 
as only a contest between the Judiciary and Execu- 
tive, but it now appears to have embraced a larger 
scope." After pointing out that, if the Federalist con- 
tention that a law establishing a Court was irrepeal- 
able was sound, "the Judges, who have so much con- 
troul over life and property and who by the boundless 
construction of common law assume the most dan- 
gerous power, would then regulate not only the law 
but the government ", and that Congress must "rescue 
the country," he continued: "The mandamus, then, 
would in the first instance act as a check, and in any 
case tend to throw doubts among weak men and afford 
at least room for invective ; again, if the Court should 
carry the assumed right of mandamus to Executive 
officers into practice, the precedent would not only 
perpetually enable the Supreme Court to controul the 
Executive but to perplex the Administration by simi- 
lar litigations on the repeal of the law, in which case 
the Court would not be at war with the Executive, 
but with Congress. There is reason to believe that 

1 Salem Register, Jam. 28, 1802, letter of Jan. 11, from a Washington corre- 
spondent. 



206 THE SUPREME COURT 

Congress will not be deterred from its duty and that 
the law will be repealed. No doubt, some struggle 
will be made at the next sitting of the Supreme Court 
in this city to effect something under color of law, which 
may have a tendency to raise the drooping spirits of 
the opposition party — indeed, I am told that the mat- 
ter was at first proposed by those behind the curtain 
not to bring it forward so soon, but the rumours that 
had been spread of the President's intention not to 
ape the monarchical forms of speechifying induced them 
to precipitate the business in the last Term." ' If the 
purpose of the Federalists in instituting the Marbury 
Case had been such as was intimated in this letter, it 
utterly failed : for the Republican party had no inten- 
tion of being deterred from abolishing the Federalist 
Judiciary legislation. For two months there ensued 
a prolonged and heated debate in Congress. 1 Os- 
tensibly there were three leading points of discussion 
— first, the necessity for any increase in the number of 
Federal Judges, in view of the alleged decrease 1 in busi- 
ness in the Federal Courts; second, the desirability 
of the performance of Circuit Court duly by the Su- 
preme Court Judges ; and third, the constitutionality of 

the proposed legislation. The Federalist attack was 
chiefly based on the proposition that a statute abolish- 
ing mating Courts would violate the constitutional pro- 

1 This reference vrai bo the End tli.it President Jefferson in hie First Annual 
Address to Congreti in December, 1801, deputed from the precedent est bj Wash- 
ington and Adams of deli vering hii address in person before Congreai and sent in 

a written message through his Secretary. 

2 7th Cong., lei debate in the Senate, Jan. 8, 8, 18, 15, Feb. *. 8, 1808; 

in the House, Feb. 15, 16, 17. IS. 10. *(>. 4\. *.-,. 88, 87, March I, 8. For detailed 

account of this debate, see Marshall, III. 50, 81, and for lively and interesting 

contemporary account, m>t cited in the above work, ice letten from Washington 
correspondents in United States Qaxette, New York Evening Poet, Xm- York Spec- 
tator, Washington Federalist, Salem (lujtte, Salem Register, passim, Jan. Man h. 
1802; Connecticut Courant, Feb. **, 1808; Farmer's Weekly Museum, Mareli lfi, 
1802. See also interesting article in the Xatiouul Aenis (Worcester, Boasi }, D0J&* 
16, 1801, on the Judiciary system, and article quoted from Connecticut Gazette. 



MARSHALL AND JEFFERSON 207 

vision relative to judicial tenure of office and would 
destroy the independence of the Judiciary, since if 
Congress had the power to wipe out a Judge's position 
whenever it disagreed with his decision, the Judiciary 
would certainly become a subservient body, acting 
under fear of Legislative action. Under such circum- 
stances, the Federalists said : "It will be in vain long 
to expect from the Judges the firmness and integrity 
to oppose a constitutional decision to a law." But 
while arguments were advanced at great length as to 
the merits and demerits of the existing statute and of 
the proposed repeal, the whole contest was, in reality, 
a mere desperate fight by the one party for the reten- 
tion of the Federalist Circuit Judges appointed by 
Adams, and by the other party for their ouster. 
Throughout the debate, the Republicans displayed 
their resentment at the action of the Court in issuing 
its rule to show cause against a Cabinet officer. Sen- 
ator Jackson of Georgia spoke of the "attack of the 
Judges on the Secretary of State." 'The Judges have 
been hardy enough to send their mandatory process 
into the Executive Cabinet to examine its concerns. 
Does this in the Judges seem unambitious ? " said Giles 
of Virginia. The granting of a rule is "an assumption 
of jurisdiction," said John Randolph of Virginia, and 
he added sarcastically: 'The Judges are said to be 
humble, unaspiring men ! Their humble pretensions 
extend only to a complete exemption from Legislative 
control ; to the exercise of an inquisitorial author- 
ity over the Cabinet of the Executive. ... In their 
inquisitorial capacity, the Supreme Court . . . may 
easily direct the Executive by mandamus in what 
mode it is their pleasure that he should exercise his func- 
tions." The action of the Court was defended by the 
Federalist leaders, James A. Bayard of Delaware and 



208 THE SUPREME COURT 

Samuel W. Dana of Connecticut. The rule to show 
cause is only an incipient proceeding, said Bayard, 
"which concluded nothing, neither the jurisdiction nor 
the regularity of the Act. The Judges did their duty ; 
they gave an honorable proof of their independence. 
They listened to the complaint of an individual against 
your President, and have shown themselves disposed 
to grant redress against the greatest man in the 
government. If a wrong has been committed and the 
Constitution authorizes interference, will gentlemen 
say that the Secretary of State, or even the President, 
is not subject to law? And if they violate the law, 
where can we apply for redress but to our Courts of 
Justice?" And, said Bayard further, the fact that the 
Court had been "hardy enougli to send their mandate 
in to the Executive Cabinet" was strong proof of the 
value of the Constitutional provision making the 
Judges independent. 'They arc 4 not terrified by the 
threats of Executive power and dare to judge between 
the rights of a citizen and the pretensions of a Presi- 
dent." This defense, however, based as it was on an 
assertion of the right of the Court to grant redress 
against the President —a right not actually involved 
in the Marbury suit which only called tor a mandamus 
to the Secretary of State 4 a right furthermore which 
the Court in its final decision disclaimed — was not 
calculated to calm the feelings of the President and 
his adherents. 

The bill passed the Senate on February 15, 1802, by 
the close vote of sixteen to fifteen. 'The Judiciary 
Bill keeps moving on," wrote Gouverneur Morris, a 
week later. "People of all parties begin to be alarmed 
at this wild measure, which, to get rid of a few obnoxious 
Judges (obnoxious to the ruling party), under the pre- 
text of saving a little money, renders the judicial system 



MARSHALL AND JEFFERSON 209 

manifestly defective and hazards the existence of the 
Constitution. ... It will, nevertheless, be carried on 
the triumphant vote of a great majority (many of them 
inwardly cursing their leaders) because the President 
has recommended it. . . . But I do not see how a 
member is to excuse himself, either to his conscience or 
to his constituents, for such excessive complaisance." 
And a Washington correspondent wrote: 'The pas- 
sage of the bill to destroy the Judiciary may be much 
obstructed but it will pass. Mr. Jefferson has set his 
heart upon this measure. 'Tis his favorite measure 
and his party will (whatever scruples some of them may 
feel about the constitutionality of it) make this desired 
offering to his revengeful spirit." Another wrote: 
"A band of ministerial mutes stand ready to pass it 
without debate. These mutes are highly drilled at 
the Assembly Room." ' The bill passed the House 
by a party vote of fifty-nine to thirty-two, and became 
law on March 31, 1802. Under its provisions, the Act 
of 1801 was repealed, and the country was divided into 
six instead of three Circuits, to each of which was assigned 
definitely a separate Judge of the Supreme Court, who 
together with a District Court Judge should compose the 
Circuit Court. 2 "Judges created for political purposes, 
and for the worst of purposes under a republican 
government, for the purpose of opposing the National 
will, from this day cease to exist," exultingly exclaimed 
an Administration paper. 3 

1 Diary and Letters of Gouverneur Morris (1888), II, 411 et seq. See as to Morris' 
great speech on the bill, New York Spectator, Jan. 23, 30, 1802 ; Farmer's Weekly 
Museum, Feb. 2, 15, 1802 ; Connecticut Courant, Feb. 22, 1802, letter of a Wash- 
ington correspondent ; New York Evening Post, Feb. 22, 1802. 

2 While the Act did not meet the full desires of the Judges, it was admitted, 
even by Chief Justice Marshall, to be a "great improvement of the pre-existing 
system." United States v. Duvall (1821), 6 Wheat. 542, 547. 

3 See National Intelligencer, March 5, 1802; ibid., Feb. 5, 1802, terming the bill 
"the triumph of Republican principles . . . economy in the public expenditure, 
distrust of extravagant executive patronage, a dread of whatever tends to the 



210 THE SUPREME COURT 

The foreboding of the Federalists over the passage 
of this "fatal bill" was pessimistic in the extreme. 1 
"The sun of Federalism has set, indeed has fallen like 
Lucifer, never to rise again," said the leading Feder- 
alist organ. Another said that "by this vote the Con- 
stitution has received a wound it cannot long survive. 
The Jacobins exult ; the Federalists mourn ; our coun- 
try will weep, perhaps bleed." Another stated that a 
mortal blow had been struck at the independence of 
the Judiciary, which the Constitution "intended should 
be a check on Executive encroachment and on Legis- 
lative intemperance and passion"; another said that 
it was "part of the systematic plan for the total sub- 
version of the law itself . . . operating in its conse- 
quence a complete destruction of the independence of 
an integral part of the Government, and introducing 
a system of corruption into the sanctuary of justice" ; 
another said that " it breaks down almost the only bar- 
rier against licentiousness and party tyranny " ; another 
stated that the Constitution had become a " mere old 
woman's story . . .its evanescent authority will soon be 
forgotten " ; another said that "the d'^ is cast and that 
Constitution which Washington framed and the people 
adopted has become a dead letter and no better than a 
last year's almanac," and that the "judicial system had 
received its death warrant." Another stated that the 
President had "gratified his malice towards the Judges 

unnecessary aggrandizement of the powers of the general government constitute a 
few of the features." Salem Register, Feb. 18, 1802. 

1 Gazette of the United States, quoted in National Intelligencer, Feb. 3,17, 1802. 
New England Palladium, quoted ibid., Feb. 12, 1802; New York Spectator, Jan. 20, 
23, 27, 30, Feb. 6, 10, 13, 20, 27, 1802; Washington Federalist, Jan. 19, March 3, 
1802; New York Evening Post, Dec. 17, 23, 29, 1801, Jan. 2, Feb. 22, 23, 27, March 
2, 3, 19, 20, articles entitled "The Examination", dealing ably with the subject 
of the Judiciary. Connecticut Courant, Jan. 18, Feb. 15, 22, March 1,-1802, and 
quoting Gazette of the United States; Farmer s Weekly Museum, March 23, 30, 
1802; Salem Gazette, Feb. 2, 12, 19, 26, March 2, 5, 9, 12, 16, 1802; Salem Regis- 
ter, March 11, 18, 1802. 



MARSHALL AND JEFFERSON 211 

. . . but has laid the foundation of infinite mischief", 
and that at the next session a move might be expected 
to repeal the law establishing the Supreme Court ; an- 
other considered the ultimate object to be the aboli- 
tion of the " ill-fated Supreme Court which Ameri- 
cans had fondly hoped would continue for ages the 
guardian of public liberty, the source of National pros- 
perity"; another announced "the alarming destruc- 
tion of the great charter of our National existence"; 
another termed it "the death warrant of the Consti- 
tution." Probably the most extraordinary prophecy of 
disaster from the passage of this legislation appeared 
in a letter from a Washington correspondent of the 
Gazette of the United States, who wrote: "The public 
mind is highly agitated here. The holders of city 
lots seem much alarmed. Not a lot had been sold for 
many days, and the prospect of a dependent Judici- 
ary and of Judges who are to be the creatures and pup- 
pets of the Virginia party prevents the sale of landed 
property here. Many of the sober-minded men of 
Virginia are endeavoring to sell their lands and slaves 
and contemplate moving to New England. From the 
violation of the Constitution, disunion, they think, 
must ensue; and when it shall, they mean to be on 
the safe side of the boundary. . . . The men who 
govern in these evil times are full of vengeance. They 
were never the friends of the National Constitution 
and it will meet with no mercy at their hands." Simi- 
lar exaggerated views were expressed by the leading 
statesmen of the Federalist party. "It is an event," 
wrote James A. Bayard, "which cannot be too much 
lamented. It establishes a principle fraught with the 
worst consequences under such governments as exist 
in the United States. The independence of the judi- 
cial power is prostrated. A Judge, instead of holding 



212 THE SUPREME COURT 

his office for life/ will hold it during the good pleasure 
of the dominant party. The Judges will of course be- 
come partisans and the shadow of justice will alone re- 
main in our Courts." * Robert G. Harper wrote to 
his constituents in South Carolina: "This system re- 
ceived a most persevering and violent opposition from 
those whose main object and endeavor it is to keep 
the Federal Government as feeble and as dependent on 
the State Governments as possible. As nothing tends 
more to defeat this plan than to give the Federal Gov- 
ernment a complete and well organized set of Courts 
where its laws may be duly enforced ; so nothing pro- 
motes the plan more effectually than to keep that gov- 
ernment destitute of such Courts, and thus lay it under 
the necessity of depending, in a great degree, on the 
State Courts for the execution of its laws. Hence, the 
zealous opposition to this system about the expense of 
which so much is said, while the real objection to it 
consists in its tendency to give stability and dignity to 
the general government and to render it independent 
of State influence and control." Hamilton wrote to 
Charles C. Pinckney that he viewed this measure as "a 
vital blow to the Constitution. In my opinion, it de- 
mands a systematic and persevering effort by all con- 
stitutional means to produce a revocation of the prec- 
edent and to restore the Constitution." 2 Pinckney 
in his reply to Hamilton said that he entirely agreed 
with him, but that : " It was natural to expect that per- 
sons who have been always hostile to the Constitution 

1 James A. Bayard Papers (1915), letter to Andrew J. Bayard, Jan. 21, 1802; 
Harper Papers MSS, letter of Feb. 25, 1801. 

2 Hamilton, X, letter of March 15, 1802; Hamilton Papers MSS, letter of Pinck- 
ney, May 3, 1802. Hamilton suggested to James A. Bayard a conference of Fed- 
eralists be called in Washington, and the formation of "the Christian Constitu- 
tional Society " whose objects should be the Christian religion and the support of 
the Constitution; and he further said: "Let measures be adopted to bring as 
soon as possible the repeal of the Judiciary Law before the Supreme Court." Ibid., 
undated letter written in April, 1802. 



MARSHALL AND JEFFERSON 213 

would, when they had power, endeavour to destroy a 
work whose adoption they opposed and whose exe- 
cution they have constantly counteracted. But I do 
not imagine they will stop here ; they will proceed in 
their mad and wicked career and the People's eyes will 
be opened." James Hillhouse wrote that "now the 
constitutional independence of the Judges is a mere 
cobweb." l Fisher Ames wrote to Rufus King: "To 
repeal the Judicial Law to save a small sum shocks many 
who could swallow the claim of a Constitutional right 
to repeal it. . . . Gouv. Morris' speeches are justly 
admired and have had effect on thinking men — i.e. 
on 600 of 6 millions"; and to Theodore D wight, he 
wrote, "the angels of destruction . . . are making 
haste." Theodore Sedgwick wrote to King: "All 
men who have been misled by an attachment to re- 
fined theory, and who really wish a security of property 
and person, will be shocked by the establishment of 
a precedent which renders the Judiciary, the only in- 
strument of this security, dependent on, and subser- 
vient to, the prevailing faction in the Legislature ; and 
the more so when they reflect that this measure is in 
direct violation of the Constitution, and not only so, 
but establishes a principle of complete consolidation 
of all National and State authority. For if the Legis- 
lature may do this, there can be no established defence 
against legislative usurpation." Gouverneur Morris 
wrote that "the repeal of the Judiciary Bill battered 
down the great outwork of the Constitution. The 
Judiciary has been overthrown," and again, writing 

1 Life and Letters of Simeon Baldwin (1919), by Simeon E. Baldwin; letter of 
Hillhouse to Baldwin, Feb. 4, 1802 ; King, IV, letter of Sedgwick, Feb. 20, 1802. 
See National Aegis, June 2, 1802, to the effect that it was rumored that Rufus King 
was to be called home from Great Britain, that John Marshall was to succeed him 
as Ambassador there and that Thomas McKean, the Republican Governor of 
Pennsylvania, was to be made Chief Justice in Marshall's place. Works of Fisher 
Ames (1854), I, 297, letter of Ames to Dwight, April 16, 1802. 



214 



THE SUPREME COURT 



to Robert Livingston, he said : kt When the Democrats 
got into power, I ventured to foretell that they would 
exalt the Executive in six months, more than the Fed- 
eralists would in so many years. The facts have veri- 
fied the prediction. They who have constantly cher- 
ished State sovereignty have, by their repeal of the 
Judiciary Law, laid the broad foundation for a con- 
solidated government ; and the first National scuffle 
will erect that edifice." 

These exaggerated views were typical of the whole 
attitude of the Federalists throughout the debate on 
the repeal bill. The question of the advisability and 
the legality of abolishing the Circuit Courts had been 
argued with more or less restraint by the Republicans 
but with much violence and bitterness by their oppo- 
nents, and the National Intelligencer was justified in 
commenting on this fact as follows : l 

The decision will be a memorable one, as well from the 
importance of the point decided, as from the cool, dignified 
and enlightened deliberation by which it was reached. It 
will be memorable too for the style in which gentlemen on 
each side conducted the discussion. It was opened by Mr. 
Breckenridge in a speech addressed exclusively to the under- 
standing, resting the subject upon facts and fair inference; 
he sunk into no needless appeal to the passions or prejudices 
of his hearers or the Nation. . . . Mark the contrast . . . 
cries of ''invasion of the Constitution" ; and the threat of a 
"dissolution of the Union" was echoed and re-echoed in every 
shape that ingenuity could devise or eloquence embody. . . . 
Thus ended this gigantic debate. With the Nation it rests 
to decide, if it has not already decided, the constitutionality 
of t he right asserted by t he Legislature. This decision 
will be made through the ordinary organs of the public will, 
notwithstanding the criminal efforts of party to agitate 
and convulse the Union. While it is to be regretted that 

1 National Intelligencer, Jan. 20, July 19, 1802, editorials. David Townsend 
wrote to William Eustis, March 4, 1802, criticizing the "impetuosity, impatience 
and intolerance of the Judiciary debate." William Eustis Papers MSS. 



MARSHALL AND JEFFERSON 215 

this untoward spirit, bent on the gratification of its sinister 
purposes, should put to hazard our dearest interests, by 
exciting passions no less subversive of Union than destruc- 
tive of the great charter of our rights, we cannot feel too 
grateful in the assurance that the American people, whose 
interests are the same, will continue in every vicissitude to 
cling to the Union of the States as the rock of their happiness. 

Subsequent history proved that the Federalist fears 
of the prostration of the Judiciary and the consolida- 
tion of the Government were futile. But while the 
Federalist attacks upon the Act and upon the intentions 
of its sponsors proved of little consequence, there 
were attacks made by some of the Republicans, during 
the progress of the debate, which were destined to 
affect very seriously the future history of the Court. 
For it was in this debate that for the first time since 
the initiation of the new Government under the Con- 
stitution there occurred a serious challenge of the 
power of the Judiciary to pass upon the constitu- 
tionality of Acts of Congress. 1 Hitherto, as has been 
pointed out, it had been the Anti-Federalists (or 
Republicans) w T ho had sustained this power as a 
desirable curb on Congressional aggression and en- 
croachment on the rights of the States, and they had 
been loud in their complaints at the failure of the 
Court to hold the Alien and Sedition Laws unconsti- 
tutional. Now, however, in 1802, in order to counter- 
act the Federalist argument that the Repeal Bill was 
unconstitutional and would be so held by the Court, 
Republican Senators and Representatives from Vir- 
ginia, Kentucky, Georgia, and North Carolina (and 
from these States alone) advanced the proposition that 
the Court did not possess the power. 2 "To make the 

1 Infra, 256 et seq. 

2 See speeches of Stevens Thomson Mason, John Breckenridge and James Jack- 
son, in the Senate, Jan. 8, 13, Feb. 3, 1803 ; John Randolph of Virginia and Thomas 



216 THE SUPREME COURT 

Constitution a practical system, this pretended power 
of the Courts to annul the laws of Congress cannot 
possibly exist," said Senator Breckenridge. " Let gentle- 
men consider well, before they insist on a power in the 
Judiciary which places the Legislature at their feet. . . . 
The Legislature have the exclusive right to interpret 
the Constitution in what regards the law-making 
power, and the Judges are bound to execute the laws 
they make." By thus insisting that final supremacy 
resided in Congress, Breckenridge now asserted the 
exact reverse of the doctrine maintained by him in 
introducing the Resolution of 1798 in the Kentucky 
Legislature ; for then he had expressly denied that 
Congress was the final authority on the constitution- 
ality of a law enacted by it. That this denial of the 
power of the Judiciary was an unexpected and unac- 
cepted doctrine, now, in 1802, was very clearly shown 
by the fact that the Administration organ, the National 
Intelligencer, stated that it thought it important to 
publish Breckenridge's speech, as it presented "views 
in some measure new and certainly deeply interesting." l 
Its novelty was also pointed out by many speakers in 
the debate. Henderson of North Carolina termed it 
"the monstrous and unheard-of doctrine which has 
lately been advanced" ; Hemphill of Pennsylvania said 
that "a doctrine new and dangerous has begun to 
unfold itself"; and Dayton of New Jersey spoke of 
"those newly professed although secretly harbored 
doctrines which exhibit in their true colors their 
deformity and dangerous tendencies." Possession of 
the power by the Courts was eloquently supported by 
Gouverneur Morris of New York, who said: "When 



T. Davis of Kentucky and Robert Williams of North Carolina in the House, Feb. 
16, 17, 20, 1802. 
1 National Intelligencer, Feb. 12, 1802; Salem Gazette, March 2, 1802. 



MARSHALL AND JEFFERSON 217 

you have enacted a law, when process thereon has 
been issued and suit brought, it becomes eventually 
necessary that the Judges decide on the case before 
them and declare what the law is. . . . The decision 
of the Supreme Court is, and of necessity must be, 
final. ... If the Legislature may decide conclusively 
on the Constitution, the sovereignty of America will 
no longer reside in the people but in Congress, and the 
Constitution is whatever they choose to make it." 1 
Aaron Ogden of New Jersey asked, if " the Legislature 
should pass bills of attainder or an unconstitutional 
tax, where can an oppressed citizen find protection but 
in a Court of Justice, firmly denying to carry into exe- 
cution an unconstitutional law. What power else can 
protect the State sovereignties, should the other 
branches combine against them ?" Archibald Hender- 
son of North Carolina said it amounted to despotism 
if Congress were to be the sole judge of the extent and 
obligations of their own statutes. "If the constitu- 
tional check which the Judges were to be on the Legis- 
lature is to be completely done away and the Judge 
who dares to question the authority of Congress is to 
be hurled from his seat, then all the ramparts which 
the Constitution has erected around the liberties of 
the people are prostrated at one blow"; the con- 
centration of legislative and judicial power in the 
hands of Congress was the definition of tyranny ; 
"and wherever you find it the people are slaves, 
whether they call their government a monarchy, 
republic or democracy." Thomas Morris of New 
York upheld the power of Courts to decide a law not 

1 See King, IV, letter of Robert T. Troup to Rufus King, April 9, 1802, describ- 
ing the speeches of Morris. See also Constitutional Republicanism (1803), by Ben- 
jamin Austin, attacking Morris' speech with great sarcasm, and for full accounts 
of the speech, see New York Spectator, Jan. 23, 30, 1802 ; Farmer's Weekly Museum, 
Feb. 2, 15, 1802. 



218 THE SUPREME COURT 

"null and void, if gentlemen dislike those terms, but 
to be no law." John Bacon, a strong Republican from 
Massachusetts, said that he "must frankly acknowl- 
edge the right of judicial officers of every grade to 
judge for themselves of the constitutionality of every 
statute on which they are called to act in their respec- 
tive spheres. This is not only their right but it is 
their indispensable duty thus to do." l James A. 
Bayard of Delaware defended the Supreme Court 
and its powers with great vigor in the ablest speech of 
the debate — a speech well worth reading in its entirety. 
He pointed out that "it was once thought by gentlemen 
who now deny the principle, that the safety of the 
citizen and of the States rested upon the power of the 
Judges to declare an unconstitutional law void. . . . 
Of what importance," he asked, "is it to say that 
Congress are prohibited from doing certain acts, if no 
legitimate authority exists in the country to decide 
whether an act done is a prohibited act?" Congress 
on this theory becomes "absolute and omnipotent" 
and may "trample the Constitution under foot. . . ." 
So, too, "if the States or the State Courts had a final 
power of annulling the acts of this government," he 
said, "its miserable and precarious existence would not 
be worth the trouble of a moment to preserve. ... If 
you mean to have a Constitution, you must discover a 
power to which the acknowledged right is attached of 
pronouncing the invalidity of the acts of the Legislature 
which contravenes the instrument." 

It has been very generally assumed by historians and 
jurists, writing mostly ex cathedra, that the opposition 

1 National Intelligencer, March 19, July 28, publishing in full this portion of 
Bacon's speech which was not reported or published in Annals of Congress, 7th 
Cong., 1st Sess. A Washington correspondent in Salem Gazette, March 2, 1802, 
said : "This concession exceedingly nettled the lenders of his party and occasioned 
him a severe scolding as soon as the committee rose." See also ibid., March 30. 



MARSHALL AND JEFFERSON 219 

to Federal judicial supremacy which was voiced in these 
debates, chiefly by representatives of Virginia and Ken- 
tucky, was based on political and legal views regarding 
the Constitution. A review of a mass of historical 
material contained in an extensive correspondence 
between Senator Breckenridge and his Kentucky con- 
stituents shows that this assumption is probably er- 
roneous, and that the opposition arose, not from any 
adherence to abstract political or juridical theories, but 
largely from the very concrete fear lest the decisions 
of the Federal Courts might be adverse to the land laws 
and the landholders of Virginia and Kentucky. 1 In both 
these States, the conditions of land titles were compli- 
cated and deplorable, and thousands of suits had been 
entered, largely by non-resident claimants of title. In 
Virginia, moreover, the famous litigation over the Lord 
Fairfax and other British titles vitally excited large 
numbers of landholders and claimants. It was, there- 
fore, chiefly on account of these fears lest the Federal 
Courts should disturb existing titles that Kentuckians 
and Virginians seized on any weapon of attack and any 
available argument against the power of those Courts. 
This situation was clearly explained by one of Brecken- 
ridge's correspondents who wanted the Federal Courts 
either abolished or stringently limited in jurisdiction, 
and who wrote: "I apprehend great danger and mis- 
chief from the (Federal) Court in this State ; a great 
part of the lands here are claimed by non-residents, 

1 See History of Kentucky and the Kentuckians (1912), by E. Polk Johnson, 143 
et seq. "John Rowan said that the Territory of Kentucky was 'encumbered and 
cursed with a triple layer of claimants." See ibid, 141, 161 et seq., for description 
of the excitement in 1795-96, over an early decision by State Judges as to the 
unconstitutionality of a Kentucky land-claimant law of 1794, and over attempts 
to remove the Judges for their decisions, "subversive of the plainest principles of 
law and justice and involving in their consequences the distress and ruin of many 
of our innocent and meritorious citizens." See also History of Kentucky (1824), 
by Humphrey Marshall, I, 419 et seq.; Lawyers and Lawmakers of Kentucky (1897), 
ed. by H. Levin. 



220 THE SUPREME COURT 

numberless disputes will arise between them and our 
own citizens, they will bring their suits in the Federal 
Court even when they have but little prospect of success 
here, with a determination to appeal to the Supreme 
Court ; the distance is so great, the scarcity of money 
and indigent circumstances of many of our citizens 
such that they will not be able to follow the appeal, 
they must either give up their lands or be forced into 
an ungenerous and unjust compromise." No less an 
eminent lawyer than Thomas Todd, then a Judge of 
the State Court of Appeals, and five years later destined 
to be appointed upon the Federal Supreme Court, 
wrote : ■ "The debates in the Senate on the resolution 
introduced by you have been highly interesting to us 
here as well as in other parts of the Union. ... I 
really conceive the passage of that bill of immense 
consequence to this State in particular. The serious 
mischief which exists in this country is the danger of 
conflicting decisions on our land claims in the State and 
Federal Courts. This mischief, I conceive, was greatly 
increased by the law of Congress you are now attempt- 
ing to repeal. We had better submit our causes to the 
decision of one Judge who is a contemporary with the 
law, has been almost an eye-witness to the circum- 
stances which gave rise to a great many claims origi- 
nating under it, for many years ;i practicing lawyer at 
the bar of Courts which were settling principles arising 
out of it, and whose principles and decisions are more 
in unison with the State 4 Courts than it is possible those 
of the additional Judges can be. ... I resist every 
idea of having suits decided by foreigners." And that 
the Kentuckians were adverse to all Federal Courts 

1 Breckenridge Paper* M88, letter <»f Thomai Todd to Breckenridge, Feb. 17, 
1802. Harry Innes, Judge of the United States District Court for Kentucky, 
had written in the same strain, Dec. 27. 1801, that there was "no necessity for 
the Circuit Court system in the Western Country." 



MARSHALL AND JEFFERSON 221 

was shown in letters from numerous correspondents. 1 
One wrote that the Federal Circuit Court system would 
"operate more mischievously than anywhere else, by 
jeopardizing those principles upon which our Courts 
have hitherto proceeded in settling their lands", and 
he hoped that "these aristocratic Judges may be left 
to graze in their own pastures." Another hoped that 
Breckenridge would "never quit the ground till the Fed- 
eral Courts and the Excise Law are both laid low in the 
grave with old Johnny Adams." Another wrote that 
he would "rejoice to see the Federal Government re- 
duced to the purposes of mere general and National 
concern and . . . the State Sovereignties completely 
reestablished. . . . They are the true and proper 
guardians of our all. We can certainly so regulate 
them as to render any interference of the General Gov- 
ernment almost unnecessary. Our State Courts are 
safe and proper tribunals for every species of con- 
troversy between man and man ; and I see no reason 
why the General Government would not receive the 
same measure of justice from those Courts as from Fed- 
eral Courts. This eternal clashing of Courts with con- 
current jurisdiction is to me absurd and dangerous. 
But the greatest evil arising from the Federal plan of 
Courts is the awful appeal to the Supreme Federal 
Court." And another asked: "Are we never to get 
clear of a Federal Court in this State? " and said : "If 
nothing else can be done, pray recommend to the States 
to amend the Constitution. This Court will ruin this 
State unless we can get clear of it." That these fears 
had some justification was seen, twenty years later, 
when the Supreme Court of the United States in Green 

1 Breckenridge Papers MSS, letters of James Barbour, Feb. 22, 1802, Samuel 
Hopkins, Nov. 21, 1801, G. Thompson, Feb. 6, 1802, Jan. 20, 1803, John Collin, 
Jan. 4. 1802. 



222 THE SUPREME COURT 

v. Biddle overturned the most important land-claimant 
laws of Kentucky on the ground of unconstitutionality. 1 
While this correspondence presents such affirmative 
proof of the reasons for hostility to the Federal Courts, 
it contains also negative proof that there was no partic- 
ular antagonism to the power of the Judiciary in general 
to pass upon the constitutionality of Acts of Congress. 
For, while Senator Breckenridge had attacked the 
existence of this power in the debates in Congress, 
nevertheless, not one of the mass of letters which he 
received from constituents congratulating him on his 
services in securing the repeal of the Circuit Court Act 
and setting forth at length the writers' views as to the 
defects of that Act, contained a single expression deny- 
ing or even questioning the lawful existence of judicial 
supremacy. 2 

As soon as the Republicans passed their Act repealing 
the Federalist statute, they determined upon another 
even more radical exercise of Legislative power. Real- 
izing that the question of its constitutionality would 
be at once questioned in the Courts and presented to the 
Supreme Court for final decision, they resolved to pre- 
vent, or at least postpone, any such decision until at 
least after lapse of time sufficient to strengthen the polit- 
ical power of the Administration. Accordingly, im- 
mediately after the enactment of the Repeal Law, a 
further bill was introduced, and after a short debate 
passed, abolishing the new June and December Terms 
of the Supreme Court (created by the Act of 1801), and 
restoring the old February Term but not the old August 
Term. By this extraordinary Legislative maneuver, an 

1 See Chapter Fifteen, infra. 

2 Breckenridge Papers MSS. For leading letters of congratulations received 
in 1802, see letter of William Vawter, Feb. 20, Robert Breckenridge, Feb. 19, 
Richard P. Barry, Feb. 21, Judge Harry Innes, Feb. 22, April 8, James Morison, 
Feb. 27, James Blair, March 2, Bartlet Collin, March 5, John Shore, March 14, 
Mathew Lyon, March 19. 



MARSHALL AND JEFFERSON 223 

adjournment of the Court was enforced for fourteen 
months (from December, 1801, to February, 1803). 
"Could a more dangerous precedent than this be es- 
tablished?" Bayard asked in a debate in the House: 
"May it not lead to the virtual abolition of a Court, the 
existence of which is required by the Constitution ? If 
the functions of the Court can be extended by law for 
fourteen months, what time will arrest us before we 
arrive at ten or twenty years ?" 1 There were Republi- 
can leaders also who doubted the advisability of the 
statute. Thus, James Monroe wrote to Jefferson that he 
feared that it might be construed as a sign of reluctance 
of the authors of the Repeal Law "to meet the Court 
on the subject. Any measure which admitted such 
an inference would give new character and tone to the 
Federal party and put the Republicans on the defensive. 
If the repeal was right, we should not shrink from the 
discussion in any course which the Constitution author- 
izes or take any step which argues a distrust of what 
is done or apprehension of the consequences"; and 
he continued with the following striking remarks as to 
the Court and its functions : 

A postponement by law of the meeting of the Court is 
also liable to other objections. It may be considered as 
an unconstitutional oppression of the Judiciary by the 
Legislature, adopted to carry a preceding measure which 
was also unconstitutional. Suppose the Judges were to 
meet according to the former law, notwithstanding the 
postponement, and make a solemn protestation against 

1 7ih Cong., 1st Sess., 1229 et seq., speech of James A. Bayard ; Monroe, III, let- 
ter to Jefferson, April 25, 1802 ; Act of April 23, 1802. 

Bayard wrote to Hamilton : " You have seen the patchwork offered to us as a 
new judicial system. The whole is designed to cover the object which the party 
considers it necessary to accomplish — the postponement of the next session of 
the Supreme Court to February following. They mean to give to the repealing 
Act its full effect before the Judges of the Supreme Court are allowed to assem- 
ble. Have you thought of the steps which our party ought to pursue on this 
subject? " Hamilton Papers, MSS, undated letter. 



224 



THE SUPREME COURT 



the repeal and this postponement, denouncing the whole 
proceedings as unconstitutional and the motive as impure. 
It might be said and truly that they had no right to meet 
by the law ; yet, as they would claim to meet under the 
Constitution, to remonstrate against the law as having 
violated the Constitution, it is probable that that objection 
would not be attended to. If they attack the law, I mean 
the act of repeal, and are resolved to avail themselves of the 
occasion it furnishes to measure their strength with the 
other departments of government, I am of opinion that 
this postponement would give new colour to their pre- 
tensions, new spirits to their party and a better prospect 
of success. It will perhaps not be possible to avoid the col- 
lision and the crisis growing out of it. A measure of the 
kind referred to invites it. The best way to prevent one 
is to take a bold attitude and apparently invite it. The 
Court has a right to take its part, and ought not to be de- 
prived of any pre-existing means. I am not apprehensive of 
any danger from such a collision, and am inclined to think 
the stronger the ground taken by the Court, especially, if 
it looks toward anarchy, the better the effect will be with 
the public. The people will then have to decide whether 
they will support the Court, or in other words embark again 
under the auspices of the Federal party, or cling to an 
Administration in two of the departments of the govern- 
ment which lessens their burdens and cherishes their liberty. 

The enactment of this statute postponing the Court's 
session did not deflect the Federalists from their deter- 
mination to have the legality of the Repeal Law pre- 
sented for an adjudication by the Court, and the 
"Midnight Judges" themselves petitioned Congress 
for the passage of a resolution to request the President 
to cause an information in nature of a quo warranto to 
be filed by the Attorney-General against Richard Bas- 
sett, a petitioner, "for the purpose of deciding judicially 
on their claims." 1 On this resolution, a heated debate 

1 Alexander Hamilton wrote to Charles C. Pinckney, April 25, 1802: "Upon 
the subject of the Judiciary I have had an opportunity of learning the opinions 
of the Chief Justice. He considers the late repealing Act as operative in depriv- 



MARSHALL AND JEFFERSON 225 

ensued in the Senate, February 3, 1803, in which the 
question of the power of the Court to pass on the valid- 
ity of an Act of Congress was again argued, and ques- 
tioned by some of the Southern Republicans. 1 "Ought 
we to go to the Courts and ask them whether we have 
done our duty or whether we have violated the Constitu- 
tion?" asked Senator Jackson of Georgia. Congress- 
man James Ross of Pennsylvania supported the power 
of the Judiciary in a remarkably able and elaborate 
speech, in which he said : " Either the law or the Con- 
stitution is a nullity. If the new doctrines be true, the 
law must prevail. If so, why provide any prohibitions 
or exceptions in a Constitution, and why ask any solemn 
Judge to support it? The Court when pressed for 
judgment must declare which shall prevail ; and if they 
do their duty, they will certainly say that a law at 
variance with the Constitution is utterly void ; it is 
made without authority and cannot be executed. By 
doing so, the Courts do not control or prostrate the just 
authority of Congress. It is the will of the people ex- 
pressed in the Constitution which controls them." Ross 
also pointed out the singular fact that hitherto the chief 
complaint of the Anti-Federalists had been that the 
Federalist Judges had, in the various cases coming 
before them under the much-attacked Alien and Sedition 
laws, upheld the validity of those laws. But if the Court 
had no power to deny their validity, with what just 
reason could their action in sustaining the criminal 
prosecutions under these laws be assailed? Hence, 
Ross presented to the present opponents of the Court 

ing the Judges of all power derived under the Act repealed. The office still re- 
mains, which he holds to be a mere capacity, without a new appointment, to re- 
ceive and exercise any new judicial powers which the Legislature may confer. It 
has been considered here that the most advisable course for the Circuit Courts to 
pursue will be, at the end of the ensueing session to adjourn generally, and to leave 
what remains to be done to the Supreme Court." Hamilton Papers MSS. 
1 7th Cong., 2d Sess., 51 et seq. 

VOL. I — 8 



226 THE SUPREME COURT 

this logical dilemma: "So general has been the im- 
pression that the Courts possess this great power, now 
denied, that several honorable members of this House 
have censured the Judges for not declaring that the 
Sedition Act was unconstitutional. If they had power 
to do so respecting that Act, why deny them the power 
as to other Acts ? " Gouverneur Morris also pointed out 
that the Court had already, in the case of the invalid 
pensioners and in the carriage tax case, passed on the 
validity of Acts of Congress ; and he showed that 
Congress itself had, in the former case, expressly sub- 
mitted the question of validity to the Court. 'There 
was a time when the American Legislature submitted 
their Acts to judicial decision. At that time, Washing- 
ton presided. Will it be said that the Administration 
was then too humble?" After a long debate, the 
Resolution was lost by a vote of five to thirteen. In 
the House, a similar Resolution that "provision ouul it 
to be made by law for submitting to judicial decision'' 
the rights of the Judges had been lost, by a vote of 
thirty-five to fifty-seven, after a debate on January 27, 
1803. 14 The memorial of the Circuit Judges has been 
dismissed without much ceremony by those who, in 
feeling power, appear to forget there are such princi- 
ples as right and wrong," said a leading Federalist 
newspaper. 1 

This refusal of Congress to take any action towards 
judicial determination of the rights of the Circuit Judges 
seemed to render it certain that through private liti- 
gation the question would be presented for the final 
determination of the Court. But as the case of Marburij 

1 Columbian Centinel, Feb. 16, 1803. The American Daily Advertiser (Phil.), 
Feb. 18, 1803, quoted a long editorial from the New York Beetling Pott in which 
it was said : "President Jefferson and the majorities in the House of Congress dare 
not submit the claim of the Circuit Judges for their compensation to judicial exam- 
ination and decision." 



MARSHALL AND JEFFERSON 227 

v. Madison was already pending, involving an explosive 
political situation, the addition of a case presenting an 
even more heated political question was likely to render 
the situation of the Court highly precarious. Already 
talk of impeachment of some of the Judges was wide- 
spread. That the repeal of the Circuit Court Act of 
1801 was not the only step which the Republicans in- 
tended to take in their campaign against the Federal Ju- 
diciary was matter of common knowledge as early as the 
spring of 1803, openly discussed in the newspapers and in 
letters of Federalist statesmen. 1 'The judicial system 
is the victim," wrote James A. Bayard in 1802, "on 
which the hearts of the whole party are set. Until it 
is immolated, they consider that nothing is done." And 
William PI inner wrote early in 1803: 'The Judges of 
the Supreme Court must fall. They are denounced by 
the Executive, as well as the House. They must be 
removed; they are obnoxious, unyielding men, and 
why should they remain to awe and embarrass the 
Administration? Men of more flexible nerves can be 
found to succeed them. Our affairs seem to approach 
an important crisis." "The Judiciary are an offensive 
barrier to their views and are to be changed or set 
aside," wrote Stephen Higginson. "The Judges of the 
Supreme Court are all Federalist. They stand in the 
way of ruling power. Its satellites also wish to occupy 
the places. The Judges, therefore, are, if possible, to be 
removed. Their judicial opinions, if at all questionable 

1 New England Palladium, March 15, 1803. Timothy Pickering wrote to Richard 
Peters, Judge of the United States District Court in Pennsylvania, on Jan. 16, 
1803, as to the probable attempt to impeach Chase and Peters for their conduct 
in the Fries and Cooper cases: "The object is to remove Chase to get rid of a 
troublesome Judge and to make room for one of the orthodox sect — no doubt 
of the same State with Chase — you will conjecture who this can be. This attempt 
cannot disturb your repose. An upright Judge has nothing to fear. He may 
indeed be removed from office ; but his integrity the tyrants of the day cannot 
take away. ... I conclude they mean seriously to attack you." Peters Papers 
MSS. 



228 THE SUPREME COURT 

through mere errors of judgment, are interpreted into 
crimes and to be ground of impeachment," wrote 
Timothy Pickering. 1 Of the violent temper of the 
Court's foes, however, possibly the most significant 
illustration may be found in a letter (only recently 
come to light) from the radical Republican leader 
of Delaware, Caesar A. Rodney, written eight days 
before the decision of the Court in Marbury v. Madi- 
son and three weeks after the final denial by Con- 
gress of the prayer of the Circuit Court Judges: 2 

The Judges have made their d£bu1 and have a proper 
conge. How strangely have they and their friends man- 
aged the business. Some fatality seems to attend every 
step our opponents take. The Supreme Court will pro- 
ceed witli caution, I should imagine, if the subject he brought 
before them, which I suspect will he the case. The oppo- 
sition will try it perhaps in every shape of which this political 
Proteus is capable. They will wait, I presume, to see what 
length the Court dare go in the case of the justices and if 
encouraged sufficiently they will appear next on the stage. 
If they (i.e. the Judges of the Supreme Court) do assert 
unconstitutional powers, I confidently trust there will be 
wisdom and energy enough in the Legislative and Execu- 
tive branches to resisl their encroachments and to arraign 

them for the abuse of their authority at the proper tri- 
bunal. Such monstrous doctrines have been preached and 
such unlimited powers arrogated for them that I know not 
what they may possibly do. They should remember, how- 
ever, that there is a boundary which they cannot pass with 
impunity. If they cross the Rubicon, they may repent 
when it will be too late to return. Judicial supremacy may 
be made to bow before the strong arm of Legislative author- 

1 James A. Bayard Papers, letter of Havanl to fllf It. Feb. 18, 1H0*; William 
Plumer Papers M88, letter of IMumer to .Jeremiah Mason. .Ian. 1 I. 1 SO:i ; Pickering 
Papers M88, letter of Iliggin.soii to Pickering, Feb. 15, 1H0V; Documents Relat- 
ing to Nctr England Federalism (1877); letter of Higguuoo to Pickering, Feb. 11, 

1804; Life and Times of (iearge Cobtji (1877), 1>,V Henry Cabot Lodge, letter of 
Pickering to Theodore Lyman, Feb. 11. L804. 

2 Joseph H. Nicholson Papers M88, letter of Kodney to Nicholson, Feb. 16, 
1803. 



MARSHALL AND JEFFERSON 229 

ity. We shall discover who is master of the ship. Whether 
men appointed for life or the immediate representatives of 
the people agreeably to the Constitution are to give laws 
to the community. The Judges have already undertaken 
in "evil times" to declare war in violation of that instru- 
ment which binds us together. I sincerely hope that they 
may take wit in their anger. They are hostile to us but they 
do not possess enough of the old Roman to sacrifice their 
salaries or even to risk them in the contest. They are not 
sufficiently disinterested. 

This was a very extreme statement to be made by a 
lawyer who, then a Congressman from Delaware, was 
destined within lour years to become Attorney-General 
of the United States and charged with the duty of argu- 
ing the Government cases before the tribunal whose 
integrity he had so attacked. An even more surprising 
suggestion had been made regarding the Court by James 
Monroe, who wrote to John Breckenridge suggesting the 
possibility (though not prepared to indorse it) that 
Congress might repeal the law organizing the Court 
"for the express purpose 4 of dismissing the Judges when 
they cease to possess public confidence", and further 
suggesting impeachment in case the Judges should 
uphold the doctrine of the Federal common law : 1 

I see with pleasure that you have moved a repeal of the 
late Judiciary Law and that you have supported the motion 
in a manner to promote the object. I am glad that you 
have come forward on so great a question, and trust that 
you will continue to do so on all those which occur while 
you are in service. Believe me, you have nothing to fear 
from any opponent, and that you have it in your power and 
will do essential service to your country. Too much has 
fallen on Virginia heretofore. The friends of the same prin- 
ciples should step forward in every quarter to vindicate 
them and thus carry them home to their constituents 
throughout the Union. Your argument for the repeal of 

1 Breckenridge Papers MSS, letter of Jan. 15, 1802. 



230 THE SUPREME COURT 

the law is highly approved here. Do you mean to admit 
that the Legislature has not a right to repeal the law organ- 
izing the Supreme Court, for the express purpose of dismiss- 
ing the Judges, when they cease to possess the publick con- 
fidence ? The Executive may seduce them by other appoint- 
ments and accommodations, but the Legislature, or in other 
words, the people, have no checks whatever fl^them, no 
means of counteracting that seduction but impeachment, 
to which it may be difficult to resort for mere political 
depravity. My own opinion is not made up on this point ; 
but were it in favor of the right suggested, I would cer- 
tainly not exercise it in the present case. Perhaps it ought 
never to be exercised. I hope, however, the period is not 
distant when the sovereignty of the people will be so well 
established, understood and respected as to make a known 
hatred and hostility to that sovereignty, by avowing the 
application of the principles of the English common law to 
our Constitution or any other mode calculated to under- 
mine it, good cause of impeachment. 



CHAPTER FIVE 
THE MANDAMUS CASE 

1303 

When the Republicans enacted their legislation 
in 1802 forcing a year's adjournment upon the Court, 
they little anticipated that its first action upon its con- 
vening thereafter would consist in the rendering of de- 
cisions in two important cases then pending, the effect 
of which would be to support the policies of the Re- 
publican Administration. Yet such was the surprising 
outcome of the February Term of 1803, when, in Mar- 
bury v. Madison, the Court denied the constitution- 
ality of the x\ct of Congress under which mandamus 
had been issued against Cabinet officials, and in Stuart 
v. Laird, the Court sustained the constitutionality of 
the Republican Circuit Court Act of 1802. 

While the main facts regarding the first of these 
cases, as given in the official report, are very familiar 
to the legal profession, a more complete study than 
has hitherto been made of contemporary writings 
portraying the details of the argument and the manner 
in which the decision was received throws much new 
light upon the actual reasons for the opposition which 
the decision evoked. The perspective of history is 
often enlightening, but it is also often misleading. The 
temptation is often strong to project the present as- 
pect of a case back to the date of its decision, and thus 
to obtain an erroneous view of its contemporary im- 
portance. A decision gathers accretions with the 
passage of time, and frequently that portion of the 



232 THE SUPREME COURT 

opinion which was of greatest import at the time when 
it was rendered becomes subordinate to other con- 
siderations. This is particularly true as to the de- 
cision in Marbury v. Madison. To the lawyers of 
today, the significance of Marshall's opinion lies in 
its establishment of the power of the Court to ad- 
judicate the validity of an Act of Congress — the fun- 
damental decision in the American system of con- 
stitutional law. To the public of 1803, on the other 
hand, the case represented the determination of Mar- 
shall and his Associates to interfere with the authority 
of the Executive, and it derived its chief importance 
then from that aspect. 

Contemporary writings make it very clear that the 
Republicans attacked the decision, not so much because 
it sustained the power of the Court to determine the 
validity of Congressional legislation, as because it 
enounced the doctrine that the Court might issue man- 
damus to a Cabinet official who was acting by direction 
of the President. In other words, Jefferson's antag- 
onism to Marshall and the Court at that time was due 
more to his resentment at the alleged invasion of his 
Executive prerogative than to any so-called "judicial 
usurpation" of the field of Congressional authority. 
This phase of the Marbury Case was brought out vividly 
in a debate which took place in Congress, a few days 
before the opening of the February, 1803, Term, over 
a motion made by Federalist supporters of Marbury 
that the Secretary of the Senate furnish from its Execu- 
tive Records a transcript of the dates of the nominations 
of justices of the peace by President Adams and of the 
actions of the Senate thereon. This evidence was of 
course desired in support of the petition for issue of the 
writ of mandamus which was to be argued at the coming 
Term. Opposing this motion, Wright of Maryland said 



THE MANDAMUS CASE 233 

that the Senate was being called upon "to aid in an 
audacious attempt to pry into Executive secrets by 
a tribunal which had no authority to do any such thing, 
and to enable the Supreme Court to assume an unheard 
of and unbounded power, if not despotism. It is to 
enable the Judiciary to exercise an authority over the 
President which he can never consent to. It is well 
known that the persons applying are enemies to the 
President, and that the Court are not friendly to 
him. . . . No Court on earth can control the Legis- 
lature, and yet it has been held here on the floor that 
they can, and this is a part of the same attempt to set 
the Court above the President and to cast a stigma upon 
him." Jackson of Georgia hoped that the Senate "will 
not interfere in it and become a party to an accusation 
which may end in an impeachment, of which the Sen- 
ate were the constitutional Judges." Breckenridge of 
Kentucky repeated the arguments which he had made 
the previous spring. 'The Senate should not counte- 
nance," he said, "the Judiciary in their attack on the 
Executive power which is not constitutionally amenable 
to the Judges. ... It is dangerous to countenance 
the pretensions set up by the Judges to examine into 
the conduct of the other branches of the Government ; 
for if they have a right to examine, they must have, as 
a necessary incident, the right to control the other de- 
partments of Government. Such right is inconsistent 
with every idea of good government, and must neces- 
sarily degrade those branches which the Judiciary 
should thus undertake to direct. The present suit is 
therefore levelled at the dignity of the first Executive 
Magistrate, and the Senate is bound to protect that dig- 
nity." l Jefferson's friends succeeded in causing the 

1 See especially Aurora, Feb. 2, 4, 1803; National Intelligencer, Feb. 2, 1803; 
Salem Register (Mass.), Feb. 21, 1803. It has been a source of wonder to many 



234 THE SUPREME COURT 

defeat of the motion and Marbury was thus obliged to 
secure his evidence in some other fashion. An editorial 
in the National Intelligencer of February 2, 1803, gives 
a lively picture of the Jeff ersonian point of view : ! 

When Mr. Jefferson entered upon the duties of the Presi- 
dency, he found himself under the necessity, during the 
recess of the Senate, of making new appointments, or of 
being instrumental in the giving effect to an exercise of power 
by his predecessor, which, if it did not violate the letter, 
certainly did violate the spirit and the end of the Consti- 
tution. Between these alternatives, he could make no 
other choice than the adoption of the former course. For 
the sake of harmony, he appointed the greater part of the 
gentlemen nominated by Mr. Adams, notwithstanding their 
federal politics. Those whom he neglected to appoint, fired 
with party vengeance, immediately made application to 
the Supreme Court (that 'paramount tribunal !) to issue a 
mandamus to the Secretary of State to deliver to them their 
commissions. The Supreme Court ought to have refused 
any instrumentality into this meditated, and, we may add, 
party invasion of Executive functions. But they so 
far sustained it as to allow a rule to show cause why a man- 
damus should not issue. Contemplating a decision on this 
point, the aforesaid individuals some days since addressed 
a memorial to the Senate of the United States, requesting 
permission to obtain ... a transcript of the proceedings 
on their nomination by Mr. Adams. This memorial was 

why these justices of the peace, whose terms of office were only for five years, 
were so insistent in pressing their case. A letter from Francis Peyton of Alexan- 
dria, in- Breckenridge Papers MSS, April I, ISO 2, possibly gives the explanation; 
he complains strongly of the statute which made these Justices members of the 
Levy Courts of the Counties, and entitled to such Court fees "by which they may 
meet as often as they think proper and may demand from the county two dollars 
for each day they attend ; they are compelled to sit twenty days and hear and 
determine appeals from the returns of the assessors." 

1 See savage attack on this article in Washington Federalist, Feb. 4, 1803. This 
paper was extremely virulent in its politics ; and it was stated by the National Intel- 
ligencer, Jan. 2, 1804, to be edited by Elias B. Caldwell, the Clerk of the Supreme 
Court of the United States. The Aurora, May 10, 1803, also charged that it was 
under the patronage of Chief Justice Marshall. To this, the Washington Federalist 
replied, May 25, 1803, that it would be gratified if it were under the patronage "of 
that great, amiable and worthy man" but "we enjoy from him no other patronage 
than that afforded us by every punctual subscriber." 



THE MANDAMUS CASE 235 

taken up on Monday and rejected Yes 15 — Noes 12 — on 
the ground that the measure was a party measure; that 
it was meant as the basis of Executive crimination ; that 
it claimed an act from the Senate who were great constitu- 
tional Judges of the Executive in case of impeachment, 
that might indelicately and improperly commit them ; 
that it sanctioned a right of the Judiciary to which they had 
no legal pretensions ; and that it totally abrogated that 
rule of the Senate which injoined that the Executive Jour- 
nal should be kept secret. It would seem from the recent 
attempts to disturb the harmony of the Legislature, that 
as much effect is calculated upon from the ghost of judicial 
power, as from the reality of it. On the annihilation 
of the latter, the former appears to have risen from the 
tomb of Capulets, and to have stalked into either house, 
alternately crying "Vengeance, vengeance" — "Money, 
money." 

The opening of the Term of Court at which the 
noted Marbury Case was to be heard was referred to in 
the newspapers as follows: "It is expected that busi- 
ness of much importance will come before the Supreme 
Court of the United States now sitting at Washing- 
ton. The constitutionality of the anti-justices bill, 
the affair of Mr. Marbury and others who were de- 
prived of their commissions as justices of the peace 
by Mr. Jefferson, and several important civil cases 
of an individual kind. We are informed that most 
of the gentlemen of the Bar of this city will attend 
here." l On February 9, 1803, the rule to show cause 
came on for hearing before the Court ; and Marbury' s 
counsel, Charles Lee, was confronted at the outset 
with obstacles in proving the facts of his case, owing 
to the unwillingness of the Secretary of State and 
of his subordinates to give any information whatever 

1 Poulson's American Daily Advertiser (Phil.), Feb. 15, 1803, quoting Baltimore 
Anti-Democrat. The Court met on Monday, February 7, but only four Judges 
were present, Judge Cushing being ill. Washington Federalist, Feb. 9, 1803. 



236 THE SUPREME COURT 

as to the commissions. It appeared from affidavits 
that Madison had refused to answer Marbury's in- 
quiry whether his commission was signed and sealed ; 
and when demand was made for the delivery of the 
commission, Madison had referred to the Chief Clerk 
Wagner, who answered that the commissions were 
not then in the office, but had been delivered to 
Attorney-General Lincoln. At the hearing in Court, 
Wagner and another clerk declined to respond to ques- 
tions, on the ground that they ought not to disclose 
official information, but the Court ordered them to 
be sworn and their answers taken down in writing. 
The Attorney-General who was summoned as a wit- 
ness also objected to testifying, and asked that the ques- 
tions be put in writing so that he might have time 
to determine whether he would answer them, since, 
as he said, he felt himself delicately situated between 
his duty to the Court and the duty he owed an Ex- 
ecutive department. To this plea, the Court replied 
" that if Mr. Lincoln wished time to consider what 
answers he should make, they would give him time, but 
they had no doubt he ought to answer." This singu- 
lar episode was vividly described in the newspapers 
as follows: "Mr. Lincoln submitted . . . that if the 
Court should think it proper the questions might 
be committed to writing and time allowed him to weigh 
the obligations between which he was placed ; his 
duty to the government through the office of State, 
and his duty to the Court and the laws. Should 
there any militancy arise between the two duties, 
it required some consideration before he should de- 
cide between the difficulties. That if the Court should, 
upon the question being submitted in writing, deter- 
mine that he was bound to answer them, another 
difficulty would suggest itself upon the principles 



THE MANDAMUS CASE 237 

of evidence ; he would suppose the case to assume 
its most serious form, if in the course of his official duty 
these commissions should have come into his hands, 
and that he might either by error or by intention have 
done wrong, it would not be expected that he should 
give evidence to criminate himself. This was an ex- 
treme case, and he used it only to impress upon the 
Court the nature of the principle in the strongest terms. 
Four questions were presented by Mr. Charles Lee, 
counsel for Marbury, etc., and being submitted to 
Mr. Lincoln, he solicited of the Court, their decision. 
Judge Washington gave his opinion first (as youngest 
Judge) in favor of the questions and their pertinence. 
Judge Chase gave his opinion in the same way, and 
Chief Justice Marshall concurred (Judges Paterson 
and Cushing were not present). Mr. Lincoln asked 
till the next morning to determine as he was com- 
pelled to attend the present day on the committee 
on the Georgia claims." ■ When Lincoln went on 
the stand, the next day, he staled in answer to the 
questions that he had seen some commissions signed 
and sealed, but did not recollect whether they were 
those of Marbury and of the other petitioners. As to 
the disposition which had been made of the commissions, 
the Court relieved him from testifying (and it is a 
singular fact that to this day no one knows what be- 
came of them). 2 The reluctance of the Attorney - 

1 This report of the case in the Aurora, Feb. 15, 1802, is much fuller than that 
which appears in CrancKs Reports, though the latter is taken verbatim from the 
report as published in the Anti-Federalist newspaper, the National Intelligencer, 
March 18, 21, 25, 1803. The National Aegis, published in Worcester, Mass., an 
Administration organ, said, March 2, 1803 : "The Attorney General has appeared 
in the Supreme Court and consented to be examined as a witness in the business 
of the mandamus. He has declined appearing in behalf of the Secretary of State, 
having no instructions for that purpose." 

2 A letter from a Republican Congressman in the Aurora, Dec. 30, 1801, stated : 
"There they lay on the table when the present Administration commenced; and 
nothing more has been heard of them. It is supposed they were disposed of with 
the other waste paper and rubbish of the office." 



238 THE SUPREME COURT 

General to state the facts was caustically commented 
upon by the Federalist papers, one of which termed 
him "a blacksmith, then a County Court lawyer, 
and now the first law officer in the Union, the elegant 
writer of the pieces commonly called 'The Worcester 
Farmer'; who made the discovery that it was high 
treason for a clergyman to think of politics, and what 
is more extraordinary that it amounted to the horrid 
crime of 'oppugnation', if he mentioned President 
Jefferson's name without first, in token of reverence, 
pulling his hat and wig off — this great man was cited 
before the Supreme Court, a few days since, as a wit- 
ness, and being sworn in the usual manner was asked 
a simple question, but could not answer it till they 
gave it to him in writing, and he went off and spent 
a whole day and night with it, and with closed doors ; 
and then he made out to remember that he had for- 
gotten all about it." ' Finally, the existence of some 
of the commissions was proved by affidavits of a clerk 
in the State Department and of James Marshall. 
In view of the fact that the Chief Justice had been 
Secretary of State at the time when these commissions 
were prepared and knew personally everything which 
Lee was painfully trying to prove, it is difficult to see 
why Jefferson and Madison were so insistent in re- 
fusing to admit the facts ; and the question put by 
Dana in Congress seemed to be somewhat justified : 

1 Washington Federalist, Feb. 23, 1803. The Aurora, March 22, 1803, said that 
James Marshall, a brother of the Chief Justice, went to the office of the Secretary 
of State, on the 4th of March, to inquire if the commissions were completed, so that 
some magistrate might be found to preserve the peace in Alexandria, where riotous 
proceedings were expected on that night. Twelve commissions were given him, 
but finding that he could not conveniently carry them, be returned some. See 
also, 1 Cranch, 146. In Marshall, III, 124, a letter of John Marshall is quoted, 
written to his brother, March 18, 1801, in which he stated: "I should, however, 
have sent out the commissions which had been signed and sealed, but for the ex- 
treme hurry of the time and the absence of Mr. Wagner who had been called on 
by the President to act as his private Secretary." 



THE MANDAMUS CASE 239 

"Why was there this shunning and changing from one 
to another; why all this dodging; why all this con- 
sultation; why give all this trouble about ascertain- 
ing facts, if they are doing right?" 

On February 11, 1803, Lee began his argument, 
speaking (as the newspapers said) "at considerable 
length. The Attorney-General said that he had 
received no instructions to appear. The Court, when 
Mr. Lee terminated his argument, observed that they 
would attend to the observations of any person who 
was disposed to offer his sentiments." No one 
responded, however, to this invitation. At the time 
of this argument, it received little attention ; for the 
city of Washington and the whole country were greatly 
excited over the alarming crisis in the relations with 
France and Spain. Four months before, the action 
of a Spanish official in withdrawing the right of deposit 
of goods for export at New Orleans, which had thereto- 
fore been granted to American citizens, had inflamed 
the whole of the Western country ; and by the month 
of February, it was reported that Kentucky and Ten- 
nessee were on the verge of attempting a seizure of 
New Orleans by armed force. Jefferson had hastily 
dispatched James Monroe to France, with instructions 
to purchase sufficient territory on the Mississippi to 
secure American rights. The Federalists, however, 
had not been satisfied with attempts to settle the dif- 
ficulty by negotiation ; they sought to make political 
capital out of the issue, to interfere with Jefferson's 
peace policies and to undermine his efforts in France, 
by inflaming the minds of the people of the United 
States and especially of Kentucky, to demand settle- 
ment through a war. Just at the time when the Mar- 
bury Case involving encroachment on Executive func- 
tions was argued, a much more dangerous encroachment 



240 THE SUPREME COURT 

on the rights of the President had been launched in 
the Senate by the Federalist Senator from Pennsyl- 
vania, James Ross ; and it was this move which, in 
February, 1803, was engaging the attention of Jeffer- 
son and the Democrats, much more than the somewhat 
moot question involved in the case in the Court. On 
February 14, at the end of the Marbury argument, 
Senator Ross had introduced resolutions providing 
that the President be authorized to take immediate 
possession of New Orleans and to call into service 
50,000 State militia and to employ them with the mil- 
itary and naval forces of the United States, in effecting 
the above objects. 1 This resolution was a direct and 
serious interference with the President's peace nego- 
tiations and was so intended. It. met with strong and 
bitter Republican opposition. "It is in fact a propo- 
sition to exercise the functions of the President," said 
Senator Wells of Delaware. "Much has been said 
about confidence in the Executive," said Senator 
Nicholas of Virginia. 'There is another way in which 
these gentlemen may manifest their confidence in the 
President, and which the public good requires of them. 
It is, that they acquiesce in the effort that he is making 
to obtain our rights and security for these rights by 
negotiation, and thereby aid its chance of success/ 1 
The Federalist Senator from New York, Gouverneur 
Morris, on the other hand, denied that they were 
"opposing obstacles or raising difficulties or fettering 
and trammeling Executive authority." Jefferson, 
nevertheless, insisted that he must not be thus inter- 
fered with and the Ross Resolution failed to pass. 
Before its defeat, however, the case of Marbury v. 
Madison was decided, and the question of Executive 
functions was thus before the public in two aspects. 

1 7th Cong., 2d Sess., debate on Feb. 14, 16, 25, 1803. 



THE MANDAMUS CASE 241 

On February 24, 1803, less than two weeks after the 
arguments had closed, Chief Justice Marshall handed 
down his famous decision. As stated in the news- 
paper accounts of the day, the questions considered 
by the Court were: '1st. Has the applicant a right 
to the commission he demands ? 2d. If he has a right 
and that right has been violated, do the laws of his 
country afford him a remedy? 3d. If they do afford 
him a remedy, is it by a mandamus issuing from this 
Court ?" l Taking up these points in the order in which 
they were thus propounded, Marshall gave an opinion 
on all three. Marbury's commission having been 
signed and scaled, said the Chief Justice, the appoint- 
ment was not revocable but vested in him legal rights 
which were protected by the laws of the country. 
Delivery or acceptance of the commission was not 
necessary. "The Government of the United States 
has been emphatically termed a government of laws, 
and not of men. It will certainly cease to deserve 
this high appellation, if the laws furnish no remedy for 
the violation of a vested legal right." Where a head of a 
department acted merely as the political or confiden- 
tial agent of the Executive, in a case where the Execu- 
tive possessed a constitutional or legal discretion, the 
Courts might not control him ; but where a specific 
duty was imposed by law, he was "amenable to the 
laws for his conduct; and cannot at his discretion 
sport away the vested rights of others." In such 
cases, he might be subject to mandamus. At this 
point, the Chief Justice took cognizance of the attack 
which had been launched at the Court in Congress. 
"Impressions are often received," he said, "without 
much reflection or examination, and it is not wonder- 

1 National Intelligencer, Feb. 12, 23, 1803; American Daily Advertiser (Phil.). 
Feb. 25, 1803. 



242 THE SUPREME COURT 

ful that in such a case as this the assertion, by an 
individual, of his legal claims in a Court of Justice, 
to which claims it is the duty of that Court to attend, 
should at first view be considered by some, as an attempt 
to intrude into the Cabinet, and to intermeddle with 
the prerogatives of the Executive. It is scarcely nec- 
essary for the Court to disclaim all pretensions to such 
jurisdiction. An extravagance, so absurd and exces- 
sive, could not have been entertained for a moment. 
The 'province of the Court is, solely, to decide on the 
rights of individuals, not to enquire how the Executive, 
or Executive officers, perform duties in which they have 
a discretion." After giving thorough consideration 
to the question whether the case might be a proper one 
for mandamus, and having arrived at the conclusion 
that the petitioner possessed rights which he was 
entitled to have protected by such form of legal pro- 
cess, the Chief Justice took up the crucial question in 
the case : was there any statute authorizing the Court 
in the exercise of original jurisdiction to issue writ 
of mandamus, and if so, was such a statute valid ? 
Clearly, if there was no such valid statute, the Court 
had no jurisdiction. It seems plain, at the present 
time, that it would have been possible for Marshall, 
if he had been so inclined, to have construed the lan- 
guage of the section of the Judiciary Act which author- 
ized writs of mandamus, in such a manner as to have 
enabled him to escape the necessity of declaring the 
section unconstitutional. The section was, at most, 
broadly drawn, and was not necessarily to be inter- 
preted as conferring original jurisdiction on the Court. 1 
If, however, it was to be so construed, as the Court 

1 The Supreme Court-Usurper or Grantee, by Charles A. Beard, Pol. Sri. Qu. 
(1912), XXVII. The section authorized the Supreme Court "to issue writs of 
mandamus in cases warranted by the principles and usages of law, to any Courts 
appointed, or persons holding office, under the authority of the United States." 






THE MANDAMUS CASE 243 

decided, then unquestionably it became the duty of 
the Court to pass upon its constitutionality. Mar- 
shall naturally felt that in view of the recent attacks 
on judicial power it was important to have the great 
principle firmly established, and undoubtedly he wel- 
comed the opportunity of fixing the precedent in a 
case in which his action would necessitate a decision 
in favor of his political opponents. Accordingly, after 
reviewing the provisions of the Constitution as to the 
original jurisdiction of the Court, he held that there 
was no authority in Congress to add to that original 
jurisdiction, that the statute was consequently invalid, 
and that it was the duty of the Court so to declare. 
In comprehensive and forceful terms, which for over 
one hundred years have never been successfully con- 
troverted, he proceeded to lay down the great prin- 
ciples of the supremacy of the Constitution over 
statute law, and of the duty and power of the Judiciary 
to act as the arbiter in case of any conflict between 
the two. "This principle,' ' as has been well said, 
"is wholly and exclusively American. It is America's 
original contribution to the science of law. The 
assertion of it, under the conditions . . . was the deed 
of a great man." l 

Had Marshall's opinion in this case been confined 
exclusively to a determination of the validity of the 

1 Marshall, III, 142. William Trickett in Marbury v. Madison, Critique, Amer. 
Laio Rev. (1919), LIII, says that it gave Marshall "an opportunity to administer 
a lecture" to Jefferson. Edward S. Corwin in The Doctrine of Judicial Review 
(1914), 9, and Mich. Law Rev. (1911, 1914), X, XII, says: "Regarded as a judicial 
decision, the decision of Marbury v. Madison must be considered as most extraor- 
dinary, but regarded as a political pamphlet designed to irritate an enemy to 
the very limit of endurance, it must be considered a huge success." And again 
he says: "To speak quite frankly, this decision bears many of the earmarks of a 
deliberate partisan coup. The Court was bent on reading the President a lecture 
on his legal and moral duty to recent Federalist appointees to judicial office . . . 
but at the same time hesitated to invite a snub, by actually asserting jurisdiction 
of the matter." Nothing in Marshall's character, however, justifies such impu- 
tation of low-minded and unjudicial motives, and the criticism seems too severe. 



244 THE SUPREME COURT 

statute and to a declaration of the power to make such 
determination, it is probable that, in view of the final 
result of the decision adverse to the petitioning justices 
of the peace, there would have been little excitement 
or antagonism aroused. But Marshall had not been 
content with so confining the scope of his opinion. 
He had discussed at great length and expressed the 
views of the Court, as to the right of the applicants 
to their commissions and as to the propriety of grant- 
ing a mandamus in such a case against a Cabinet officer. 
Such discussion was undoubtedly mere dicta; and it 
was this aspect of the case which at once aroused severe 
criticism and attack by President Jefferson and his 
adherents. With much justice and reason, they bit- 
terly resented the action of Marshall and the Court 
in this respect. Jefferson felt thai they had intention- 
ally gone out of their way to rule on points unneces- 
sarily for the decision, and he regarded it as a deliberate 
assumption of a right to interfere with his Executive 
functions, "an attempt in subversion of the independ- 
ence of the Executive and Senate within their peculiar 
departments." "I found the commissions on the table 
of the Department of State, on my entrance into office, 

and I forbade their delivery," lie said. "Whatever 

is in the Executive offices is certainly deemed to be in 
the hands of the President, and in this case, was act- 
ually in my hands, because when I countermanded 
them, there was as yet no Secretary of State"; and 
his indignation over Marshall's opinion continued hot 
up to the day of his death. Writing four years later, 
at the time of the Burr trial, he stated that he had "long 
wished for a proper occasion to have the gratuitous 
opinion in Marbury v. Madison brought before the 
public and denounced as not law ", and as la teas 1823, he 
wrote to Judge William Johnson that "the practice of 



THE MANDAMUS CASE 245 

Judge Marshall in travelling out of his case to prescribe 
what the law would be in a moot case not before the 
Court" was ''very irregular and very censurable ", and 
that in the Marbury Case "the Court determined at 
once that, being an original process, they had no cog- 
nizance of it ; and therefore, the question before them 
was ended. But the Chief Justice went on to lay down 
what the law would be, had they jurisdiction of the 
case, to wit : that they should command the delivery. 
The object was clearly to instruct any other Court 
having the jurisdiction what they should do if Mar- 
bury should apply to them. Besides the impropriety of 
this gratuitous interference, could anything exceed the 
perversion of the law ? . . . Yet this case of Marbury 
v. Madison is continually cited by Bench and Bar as if 
it were sett Km I law, without any animadversion on its 
being merely an obiter dissertation of the Chief Justice." l 
It was this phase of the case, the alleged trespass of 
the Judges on the Presidential field of power, which 
elicited the most attention from the newspapers at the 
time the decision was rendered, and it received wide- 
spread comment. The brief resume of the opinion 
which appeared in the National Intelligencer was widely 
republished, and many papers printed the opinion in 
full. 2 The Federalist papers regarded it as a just rebuke 

1 Jefferson, X, XII, letters of Jefferson to George Hay, June 2, 1807, to William 
Johnson, June 12, 1823, to William Jarvis, Sept. 28, 1820. 

2 See National Intelligencer, Feb. 23, 1803; Independent Chronicle (Boston), 
March 4, 1803 ; New York Daily Advertiser, March 7, 1803 ; American Daily Adver- 
tiser (Phil.), March 4, 1803; New York Spectator, March 5, 1803; Massachusetts 
Spy, March 16, 1803; National Aegis, March 16, 1803. Many newspapers con- 
tained a very erroneous account of the point decided ; thus the Alexandria Adver- 
tiser (Va.), said: "We understand the Judges of the Supreme Court have given 
it as their opinion in the case of the mandamus that the Justices are entitled to 
their commissions but that they have not the power to issue a mandamus in the 
District of Columbia, it not being a State ; if, however, the occurrence had taken 
place in one of the States, they should have had no hesitation in granting it." 
Quoted in Georgia Republican, March 7, 1803, and Boston Gazette, March 10, 1803. 

Beveridge says that the opinion "received scant notice at the time of its delivery. 
The newspapers had little to say about it. Even the bench and the bar of the coun- 



246 THE SUPREME COURT 

to the President and a condemnation of his unlawful 
action. The Republican press termed it an abuse of 
power on the part of the Judges and an interference 
with the functions of the Executive. 1 The Washing- 
ton Federalist said that the Court had "considered 
each point at great length and with great ability", 
and it termed the opinion "interesting and highly- 
important ", saying that it would not fail to attract 
attention and admiration : 

The important principles resulting from the peculiar 
structure of our government which are there examined and 
settled — the ability with which these principles are inves- 
tigated — the strength and reason with which they are sup- 
ported, and the perspicuous yet nervous stile in which 
they are delivered, must excite in every American, an honest 
pride, at seeing their Courts of Judicature, these guardians 
of their property, lives and reputations, supplied with such 
talents and animated with so laudable a zeal for the rights 
and liberties of the citizen. There has not been wanting 
men even on the floor of Congress, base enough to make 
the most unwarranted insinuations against the Justices of 
the Supreme Court. They have called this application for 
a mandamus, their measure — instigated and supported by 

them as an hostile attack upon the Executive, to gratify 
party spirit, and encrease their own power. Let such men 
read this opinion and Mush, if the power of blushing still 
remains with them. It will remain as a monument of the 
wisdom, impartiality and independence of the Supreme 
Court, lon# alter the names of its petty revilers shall have 
sunk into oblivion. 

Another violently Federalist paper, the Connecticut 
Courant, printed an ironical letter in which it was said : 

try, at least in the sections remote from Washington, appear not to have heard of it." 
Marshall, III, 153. This statement as to the newspapers does not appear to be 
supported by the facts. The decision was printed in full in National Intelligencer, 
March 16, 20, ISO.'J; New York Spectator, March 80, April 2, 1803; Aurora, March 
23, 24, 1804, and in many other papers in the country. 

1 Washington Federalist, Feb. 25, 1803; Connecticut Courant, May 25, 1803; 
New England Palladium (Boston), April 12, 1803; New York Evening Post, Maroh 
23. 1803 ; Boston Gazette, March 24, 1803. 



THE MANDAMUS CASE 247 

Rejoice, ye democrats, at the firmness of your chieftain 
who dares withhold from the Justices of Columbia their 
commissions in violation, as the Court declared, of their 
vested rights, for were they not guilty of the sin of federal- 
ism, and were they not commissioned by Mr. Adams, just 
before he went out of office? Is it not plain that appoint- 
ments by Mr. Adams and his federal Senate were an inso- 
lent offence to the dignity and feelings of Mr. Jefferson, and 
therefore void ? It must be so ... . Rejoice, ye democrats, 
that at length there is discovered such clear and irrefra- 
gable proof that the Judiciary system ought to have been 
broken down, the Constitution notwithstanding, for this 
was established just as the sun of federalism was setting, 
and always was very offensive to the weak nerves of Mr. 
Jefferson ; but supposing it should be, as federalists affirm, 
no better than robbing to deprive men of their commissions 
to which they have the same right as to their houses, what 
of that? The public can be in no danger from such trans- 
actions, if Mr. Jefferson is the author of them ! 

The New England Palladium said : 

The measures of the administration have been levelled 
at those passions which democracy first inflames, to use as 
the instruments of tyranny afterwards. But the people of 
New England are not so easily duped or so shortsighted as 
the Virginia politicians expected. In the repeal of the 
Judiciary, in withholding the commissions of Ray, Green 
and William Marbury, they estimate the value of profes- 
sion of regard to the Constitution. In the last case, it has 
been solemnly decided in the Supreme Court that Mr. Jef- 
ferson, the idol of democracy, the friend of the people, has 
trampled upon the charter of their liberties. 

The New York Evening Post published an editorial 
headed "Constitution violated by the President " : 

In this evening's papers our readers will see that it has 
been solemnly determined by the Supreme Court of the 
United States, and the opinion has been formally delivered 
by the Chief Justice, that Mr. Jefferson by withholding 
the commission from Mr. Marbury, after it was signed by 



248 THE SUPREME COURT 

a former President and sealed by the Secretary of State 
has been guilty of an "act not warranted by law but vio- 
lative of a vested right." And this, fellow citizens, is that 
meek and humble man who has no desire for power ! This 
is he, of whom his sycophants at Washington in an address 
to the people, after the rising of the last Congress, said : 
"At the head presides a man who for the promotion of the 
public good and the preservation of civil liberty, solicits 
the limitation of his own powers, the reduction of his own 
privileges, and the exercise of constitutional check to limit 
the executive will." What falsehood! What mockery! 
What insolence ! . . . Behold a subtle and smooth-faced 
hypocrisy concealing an ambition the most criminal, the 
most enormous, the most unprincipled. He solicits the 
limitation of his rightful powers, yet the first act of his 
Administration is to stretch his powers beyond their limits, 
and from motives the most unworthy, to commit an act of 
direct violence on the most sacred right of private property. 

While the Federalist commendation of Marshall's 
opinion was profuse, it is surprising to note that the 
most bitterly partisan Republican papers, like the 
Administration organs, the National Aegis in Massa- 
chusetts and the National Intelligencer, and the violent 
opponents of Federalism like the Aurora in Philadel- 
phia and the American Citizen in New York, made no 
criticism of the decision; and contrary to the views 
advanced by opponents of the Court in later days, 
these Republican papers showed no antagonism what- 
ever to Marshall's view of the righl of the Court to 
pass upon the constitutionality of an Act of Congress. 1 
The Independent Chronicle, which was the leading- 
Republican paper of Boston, published an editorial, 
shortly before it received word of the decision, assail- 
ing the Court, but only on the ground that the Court 

1 The Aurora, March 31, 1803, criticize! editorially the "frequent abuM of 
power by Judges in the courts and justices of the peace", hut it was referring to 
actions of the Pennsylvania Judiciary. 






THE MANDAMUS CASE 249 

by issuing a mandamus would be interfering with the 
functions of the Executive : l 

The efforts of Federalism to exalt the Judiciary over the 
Executive and Legislative, and to give that favorite depart- 
ment a political character and influence, may operate for 
a time to come, as it has already, to the promotion of one 
party and the depression of the other, but it will probably 
terminate in the degradation and disgrace of the Judiciary. 
Politics are more improper and dangerous in a Court of 
Justice, if possible, than in I lie pulpit. Political charges, 
prosecutions, and similar modes of official influence ought 
never to have been resorted to by any parly. The fountains 
of justice should be unpolluted by parly passions and preju- 
dices. The attempt of the Supreme Court of the United 
Slates by a mandamus to control the Executive functions 
i> a new experiment. It seems to be no less than a com- 
mencement of war between Hie constituted departments. 
The Court must be defeated and retreat from the attack; 
or march on until they incur impeachment and removal 
from office. But our Republican frame of Government is 
so firm and solid that there is reason to hope it will remain 
unshaken by the assaults of opposition and the conflicts of 
interfering departments. 

The ablest newspaper criticism of the decision 
appeared in a series of six letters over the signature 
of "Littleton" addressed to the Chief Justice and 
published in a Republican paper, the Virginia Argus; 
yet even in these, the assault upon Marshall's opinion 
was directed, not at the Court's exercise of the power 
to question the validity of the statute, but at the Court's 
irregularity in going out of its way to declare the rights 
of Marbury to his commission and to a mandamus 
after it had decided that it had no jurisdiction of the 
case. 2 The writer first denounced the opinion as a 

1 Beveridge points out that this editorial must have been published prior to 
receipt in Boston of notice of the decision. 

2 Republished in the Aurora, April 23, 26, 30, May 2, 3, 1803; Republican 
Watchtower (N. Y.), May 19, 25, 1803. 



250 THE SUPREME COURT 

surprising production unworthy of its author: "The 
case, as it has been ushered before the world, perplexes 
as much as it astonishes the thinking mind. The mass 
of the American people receive it as the genuine pro- 
duction of the Court, but there is a portion of the Nation 
(in which the most enlightened of the profession stand 
conspicuous) whose credulity cannot be so easily 
imposed on. To the Supreme Court, as to a luminary, 
the community looked for light and lustre. The 
splendid talents of the members, their pride, their 
importance, their rank in office, all conspired in the 
impression of their rank in office, all conspired in the im- 
pression of their greatness. But in what is portrayed to 
be their issue, your brethren of the Bar see a hideous 
monster ; its conceptions in giant size, its succeeding 
years dwindling into nothing; its head in the rear, 
its tail in front, its legs mounted on high to support 
the burthen, while its back was destined to tread the *"*■< 
earth, its bowels in the exterior and its hide in the 
interior. . . . My object is first to convince you that, 
for one short moment, you should descend from the 
altitude of reserve to rescue your fame from the hungry 
jaws of obloquy, by disowning the child of which you are 
the chief putative parent ; and if I fail in that, to con- 
vince the people that it is unworthy of you 1 and there- 
fore not yours. " He then pointed out that "three 
questions are reported to have been decided. The 
last decision was that the Court had no jurisdiction to 
decide the other two, which they nevertheless decided. 
. . . To decide upon the merits of a cause without 
jurisdiction to entertain it, I affirm to be contrary to 
all law, precedent and principle," and he asked : 
"Could it accord with impartiality, policy, justice or 
dignity to reverse the principle, and encourage a liti- 
gation by prejudging a member of the Government 



THE MANDAMUS CASE 251 

on a question that the very act of adjudication advised 
the applicant to bring before you in your appellate 
character?" Moreover, he complained: "The papers 
have not been content with exhibiting this anomaly 
in judicial acts — they have pencilled you, sir, in 
darkest colors. They make you say that a legal investi- 
gation of the acts of one of the heads of departments 
was rendered peculiarly irksome as well as delicate. 
In other words, that in solemnly committing your- 
selves to the applicants — in delivering an extra- 
judicial opinion, upon an ex-parte hearing — stirring 
up litigation and prejudging a great officer's conduct, 
whose future examination before you was thereby 
rendered morally certain, you were performing a duty 
which you submitted to with pain." This furnished, 
he said, an additional reason why the Court should not 
have passed upon points unnecessary for the decision 
of the case. It was evident, he said further, that 
Marshall was endeavoring to show to the petitioner 
that while he might have no remedy in the Supreme 
Court, he possessed one in some other Court. 1 The 
leading Republican paper in New England, the Inde- 
pendent Chronicle, published but one criticism of the 
decision, a letter from a correspondent addressed to 
Judge Cushing and complaining that the Court's 
remarks as to the right to mandamus were unneces- 
sary : "The Court solemnly decided that they had no 
constitutional jurisdiction ; and yet as solemnly under- 
took to give a formal opinion upon the merits of the 

1 These letters were attacked editorially by the Washington Federalist, May 18, 
1805, as follows : "A writer in the Virginia Argus has addressed a number of essays 
to Chief Justice Marshall. It is amusing to see how he raves and rants in all the 
majesty of fancied importance. Reader, did you never see a whippet bark at the 
prancing steed and assume the airs of a dangerous enemy ? Meanwhile, the horse 
disdains even to look at him. Or did you ever see a goose attack with hisses the 
passing herd? With what complacency it returns to receive the congratulations 
of its companions ? " 



252 



THE SUPREME COURT 



question which was not officially before them, and that 
without a hearing of the adverse party and in opposi- 
tion to the Executive department of government. . . . 
I take it for granted that the Supreme Court of the 
Nation would not, from party motives, volunteer an 
extra-judicial opinion for the sake of criminating a 
rival department of government ; and yet, in all my 
reading, I have not been able to find either principle 
or precedent for such a practice." ! While other 
Republican papers contained similar criticisms of the 
Court, either for deciding a point not before it or for 
interfering with Executive functions, practically the 
only published attack on that portion of Marshall's 
opinion which asserted the power and the duty of the 
Court to pass upon the validity of the Act of Congress 
involved was contained in a series of letters from a 
Virginian, signed "An Unlearned Layman" and printed 
in the leading Federalist paper in Washington, which 
prefixed to them the editorial comment that it had 
"thought the subject almost too clear for controversy, 
and when elucidated by the able opinion of the Supreme 
Court scepticism itself could no longer doubt." 2 "The 
claim to this most dangerous power," the writer of 
the letters said, "was first founded on a clause in 
the compact which indirectly conferred this power, 
as they allege, and which now, fortified by precedents 
and if not resisted, will become the law of the land." 
In an elaborate argument as to the supremacy of the 
Legislature, he pointed out "the danger and incon- 
sistency of such a power residing in the Judges." These 
letters were answered with great ability by another 
writer in the same newspaper, who said: "It has 
always appeared to me a matter of astonishment that 



1 Independent Chronicle, June 16, 1803; Republican Watchtawer, June 15, 1803. 
3 Washington Federalist, April 20, 22, 27, 29, 1803. 



THE MANDAMUS CASE 253 

a power, should be denied, which is so necessary and so 
clearly defined, as that of the Judges of the United 
States to declare a law unconstitutional, or in other 
words, to pronounce the Constitution of superior 
obligation to the law. . . . The Judges do not pre- 
tend to a right to suspend or nullify the acts of the 
Legislature. But if a law conflict with the Con- 
stitution, the Judges are bound to declare which is 
paramount. The Judges here arrogate no power. It is 
not they who speak — it is the Constitution, or rather, 
the people. The Judges have no will ; they merely de- 
clare what is law, and what is not." He pointed out 
that the two great pillars of the argument of the "Un- 
learned Layman" were first, a supposed supremacy of 
the Legislature and second, a supposed control of the 
Legislature by the Judges, whereas, in reality, it was 
the people and the Constitution which controlled. "The 
Legislature is not the supreme power in the United 
States. ... It is but an emanation from that supreme 
power. The voice of the people expressed in the Consti- 
tution limits the Legislative power and controls its will. 
. . . What is the use of checks and balances in a govern- 
ment ? Is it not to control the violence of the passions, to 
check ambition, and to form a shield from persecution ? 
... If the President or Judges depart from their 
duty, they may be impeached, and should there be no 
barrier to the violence, the persecution or the ambition 
of the Legislature? This shield from oppression is 
the Judiciary." 

That contemporary criticism of the opinion was 
chiefly directed at its announcement of a power to 
control Cabinet officials is further interestingly shown 
by a correspondence (not published at the time) 
between two North Carolina Republicans — Gen. 
John Steele, formerly United States Comptroller of the 



254 THE SUPREME COURT 

Treasury, and the noted Nathaniel Macon. 1 Steele, af- 
ter elaborately attacking the Court for its erroneous 
action in trespassing on the functions of the Execu- 
tive, proceeded to denounce the " fashionable doctrine 
which it (the Mandamus Case) was made use of to 
establish that the Courts have power to pronounce 
acts of Congress unconstitutional and void." " Whence 
originates," he asked, "the error in supposing that 
the Judges possess this new and gigantic power? I 
answer in the facility with which small bodies of men 
can be brought to embrace an opinion favorable to 
their own dignity and official influence, to the common 
interest which gentlemen of the law feel throughout our 
country in extending their sphere of action by increas- 
ing the jurisdiction of the Judicial Department, and 
as a necessary consequence the chances of litigation — 
but above all to inaccurate notions, which are perhaps 
the offspring of the foregoing combination, concerning 
the original distribution of powers by the Constitu- 
tion, and the indulgence with which that department, 
on account of its weakness, has been regarded by a 
generous people." To this letter, however, Nathaniel 
Macon, who was one of the strongest of the leaders of 
the Republican party, replied thai he was of the opin- 
ion that the Judges possessed the power to pass upon 
the validity of the statute*, and that the case had been 
correctly decided, although "the reasoning which led to 
the conclusion seems to be directly opposed to it, and 
puts me in mind of a noted member of Congress who 
always spoke on one side and voted on the other. If 
they had no power to determine on the merits of the 
complaint, they had no authority to grant the rule in 
the first instance, and the mandamus ought not to 

1 See James Sprunt Hist. Monograph No. 3 (Univ. of No. Car. Publ., 1902), letter 
of John Steele to Macon, April 11, 1803, and of Macon to Steele, June 11, 1803. 






THE MANDAMUS CASE 255 

have been issued ; the argument on which the question 
seemed to be decided had nothing to do with the ques- 
tion, but certainly had a squinting towards another." * 
That the holding of an Act of Congress to be uncon- 
stitutional excited little attention or apprehension was 
interestingly shown by the fact that within six months 
after the decision of the Marbury Case, another Fed- 
eral statute was declared to be in conflict with the 
Constitution, by the Circuit Court for the District 
of Columbia, in United States v. Benjamin More. This 
case, by a singular chance, again involved rights of 
the justices of the peace of Washington. The Act of 
February 27, 1801, which granted them certain fees, 
had been repealed by an Act of May 23, 1802; and 
a defendant justice, on being indicted for receiving 
fees, contended that the repealing act was in violation 
of Section One of Article Three of the Constitution 
which prohibited the diminishing of compensation of 
Judges of the Supreme and inferior Courts of the United 
States. The Circuit Court through Judges Cranch and 
Marshall (Chief Justice Kilty dissenting) held that 
"a justice of the peace for Washington County in the 
District of Columbia is a judicial officer of the United 
States under the Constitution and that therefore the 
Act of Congress of May 23, 1802, so far as the same 
relates to the abolition of the fee of justices of the 
peace, is unconstitutional and void." 2 Although this 
decision was published in full in the Administration 
papers in Washington and elsewhere, the exercise of 

1 Macon further said: "The Courts must make every declaration of the uncon- 
stitutionality of a law at their peril ; because the Judges are made accountable for 
their conduct by the Constitution, and if Judges could declare acts void, without 
being liable for their actions, they would be the supreme authority of the Nation 
and that without control — and the only department in the Government where 
a power might be exercised to any degree, without the least check or control by any 
other department of the Government." 

2 National Intelligencer, Aug. 5, 1805 ; Republican Watchtower, Aug. 9, 1803. 
The case does not appear to have been noted by legal historians. 



2.3G THE SUPREME COURT 

judicial power with respect to this Republican legis- 
lation evoked no criticism of any kind. 

The fact is, that, so far from being a power "usurped " 
by Chief Justice Marshall and theretofore unrecog- 
nized by the general public, the right of the Judiciary 
to pass upon the constitutionality of Acts of Congress 
had not been seriously challenged until the debate in 
1802 on the Circuit Court Repeal Act. Prior thereto 
it had been almost universally recognized, and even 
in 1802, it was attacked purely on political grounds 
and only by politicians from Kentucky, Virginia, 
North Carolina and Georgia. 1 While law writers have 
hitherto refuted the charge of "usurpation" by cit- 
ing the views of statesmen in the Federal Convention 
of 1787 and the opinions of State and Federal Courts 
prior to 1802, even more conclusive disproof of the 
charge is to be found in an examination of the current 
literature of the years from 1789 to 1802. At no pe- 
riod in American history were political questions more 
generally, more thoroughly, and more holly discussed 
in print than during tin 4 first fifteen years after the 
formation of the Constitution. Every political, social 

or legal doctrine upheld by either the Federalists or 

the Anti-Federalists was debated and denounced by 
their opponents, in editorials, in letters to the news- 
papers, and in privately published pamphlets. More- 

1 In Dtfiurr of Ih, ■ Mtusiins of thr An 1 m i iii st ra! ioa of Thomas ./rjfrrson (1804), 

by "Curtius", :{(>, :*7, John Taylor of Carolina deplored the judicial power hut 
did not deny its existence. Three years before, however. John Taylor, writing 
to Wilson A. Nicholas, Sept . ."». L801, expressly admitted the existence of the judicial 
power, for he said (relative to the Circuit Court Act of 1801): "The responsibility 

of the Judiciary cannot begin until Congress shall perform their function. Then 
the question will occur whether the abolition of a Court abolishes the salary con- 
stitutionally. The responsibility falls on the Judiciary." Jrffrrsoii PapfTS, Mas*. 
Hist. Sor. Coll. (1900). Practically no evidence of opposition to judicial power 
appears in the newspapers of 1808 or L804, other than a letter from a correspond- 
ent of the Aurora, March <!. 1K0V, who wrote that the claim of a power of suspend- 
ing laws to be exercised by the Judiciary was a part of the "Federalist system 
of aristocracy." 



THE MANDAMUS CASE 257 

over, resolutions of the Legislatures and formal toasts 
offered at banquets and public meetings were often 
the vehicle for announcement and denouncement of 
political doctrines on both sides. An extensive exam- 
ination of these sources of expression of public opinion 
discloses the fact that, from 1789 to 1802, there was 
almost no opposition to the exercise of the power of 
the Court to pass upon the validity of statutes, and 
that it had been almost unchallenged, until the debates 
in Congress in 1802 over the repeal of the Federalist 
Circuit Court Act. Had there been any great popular 
discontent at this action of the Judiciary, it would 
have revealed itself in letters or editorials in prominent 
Anti-Federalist papers like the Aurora, in Philadelphia, 
the American Citizen, in New York, the Virginia 
Argus, in Richmond, or the Independent Chronicle, 
in Boston, whose columns teemed with attacks upon 
every other alleged "outrage" or "usurpation" com- 
mitted by Federalist officials and by Federalist Judges. 
Yet these newspapers, and similar partisan journals 
of less wide circulation, contain practically no evidence 
of any challenge of judicial power between 1789 and 
1802. 1 Only two serious attacks upon this function 
of the Court were published — one by a Federalist, 
Zephaniah Swift, in 1795, in a treatise on the law of 
Connecticut, and the other by an Anti-Federalist, 
Charles Pinckney of South Carolina, in a series of 
newspaper letters in the campaign of 1800; and as 
to Pinckney's attack, a number of subscribers to a 
leading Anti-Federalist paper wrote that if Pinckney's 
views "were to grow into general opinions, they would 
be infinitely more alarming to the liberties of the people 

1 Beveridge, in his Marshall, III, 116, says: "Both Federalist and Republican 
newspapers had printed scores of essays for and against the doctrine." Examina- 
tion of the papers does not seem to support this statement. 
VOL. I — 9 



258 THE SUPREME COURT 

than any of the doctrines which he attempts to refute." 1 
It has sometimes been asserted by modern writers 
that the Kentucky and Virginia Resolutions of 1798-99 
were a denial of the existence of this power, and that 
in them "the first outspoken revolt against judicial 
control appears." 2 An examination of the current 
publications of the period reveals the fact that, on 
the contrary, the very men who drafted and proposed 
these Resolutions fully recognized without dispute 
this function of the Courts. 3 Thus, George Nicholas, 

1 A System of the Laics of the State of Connecticut (1795), by Zephaniah Swift, I, 
51-53; Letters from a South Carolina Planter (1800), by Charles Pinckney; Whar- 
ton's State Trials (1849), 912. Pinckney wrote in 1799 : " l T pon no subject am I 
more convinced than that it is an unsafe and dangerous doctrine in a republic, 
ever to suppose that a Judge ought to possess the right of questioning or deciding 
upon the constitutionality of treaties, laws or any act of the Legislature. It is 
placing the opinion of an individual, or of two or three, above that of both branches 
of Congress, a doctrine which is not warranted by the Constitution, and will not, 
I hope, long have many advocates in this country." Economic Origins of Jefferso- 
nian Democracy (1915), by Charles A. Beard; Independent Chronicle, Nov. 25, 
1799. See also speech of Charles Pinckney, on his bill to prevent the Judges 
from holding any other office, in which he said: "It is our duty to guard against 
any addition to this bias which a Judge, from the nature, of his appointment, 
must inevitably feel in favour of the President. It is more particularly incum- 
bent on us, when we recollect that our Judges claim the dangerous right to ques- 
tion the constitutionality of the laws; and either to execute them or not, as they 
think proper; a right, in my opinion, as unfounded and as dangerous as any that 
was ever attempted in a free country. They, however, do exercise it." 6th 
Cong., 1st Sess, 101, March 5, 1800. 

2 As an example of this misstatement, J. Hampden Dougherty, in Power of the 
Federal Judiciary over Legislation (1912), 83, states : "History furnishes convincing 
proof as to the date when the doctrine that the Supreme Court has no power to let 
aside legislation was first explicitly announced. It never appeared until the formu- 
lation of the Virginia and Kentucky Resolutions in 1798-1799. These Resolutions 
denied this power and asserted the right of the separate States to judge whether 
acts of their own Legislatures conflicted with the organic law of the Union, and to 
repudiate Acts of Congress which they deemed unconstitutional. ... It is in 
the Virginia and Kentucky Resolutions that the first outspoken revolt against 
judicial control appears." Beveridge, in his Marshall, III, 105, 106, 108, 116, 
makes the same statement. 

3 See as to these Resolutions in general : The Kentucky Resolutions of 1798 (1887), 
by Ethelbert D. Warfield ; History of the Kentucky and Virginia Resolutions (1880), 
by Elliott Anthony; History of Kentucky and Kentucky Men (1912), by E. Polk 
Johnson; History of Kentucky (1824), by Humphrey Marshall; Kentucky Reso- 
lutions of 1798, by Edward Channing, in Amer. Hist. Rev. (1915), XX; The Ameri- 
can Nation; The Federalist System (1906), by J. S. Bassett ; Letter of George Nicholas 
to his friend in Virginia, Nov. 10, 1798, justifying the conduct of the citizens of Ken- 
tucky as to some of the late measures of the general government; and correcting cer- 



THE MANDAMUS CASE 259 

the leader of the Kentucky Bar, who, with John Breck- 
enridge, was chiefly influential in securing the adoption 
of the Resolutions in Kentucky, wrote at the time in 
their defense, quoting Alexander Hamilton, and saying : 
"As long, therefore, as the Federal Courts retain their 
honesty and independence, our Constitution and our 
liberties are safe ; and a corrupt faction which should 
enact, and be desirous of enforcing unconstitutional 
acts would be placed in this dilemma ; if they at- 
tempted to enforce them, the Courts would declare 
them to be void ; if they did not make the attempt, 
it would amount to an acknowledgement on their 
parts that they were unconstitutional, which would 
certainly and deservedly bring both the President and 
Congress into contempt and disrepute with, and excite 
against them the hatred of, the good people of the 
United States." John Breckenridge himself, in the 
debate in the Kentucky Legislature in November, 
1798, while denying emphatically that the Congress 
were "the sole judges of the propriety and constitution- 
ality of all acts done by them" and while supporting 
the right of the States in the last resort, to pass upon 
the constitutionality of a statute, admitted at the same 
time that the Judges might refuse to act under such 
statute on the ground of its unconstitutionality. 1 
The chief sponsors of the Resolutions in Virginia, 
Thomas Jefferson and James Madison, had each admit- 
ted the existence of judicial power. As late as 1798, 
Jefferson had written: "The laws of the land, admin- 
istered by upright Judges, would protect you from any 
exercise of power unauthorized by the Constitution of 

tain false statements which have been made in the different States of the views and 
actions of the people of Kentucky, in National Magazine (ed. by James Lyon, Rich- 
mond, June, 1799), I, 217. 

1 See The Kentucky Resolutions of 1798 (1887), by Ethelbert D. Warfield, 93 et 



260 THE SUPREME COURT 

the United States." 1 And Madison, in his report to 
the Virginia Legislature in 1799, expressly declared 
that his Resolutions were expressions of opinion, unac- 
companied with any other effect than w T hat they may 
produce "by exciting reflection. The expositions of 
the Judiciary, on the other hand, are carried into 
immediate effect by force." Thirty years later, when 
his Resolutions were being cited in support of the 
Nullification movement, Madison clearly pointed out 
in numerous letters that they did not constitute or 
imply any denial of the supremacy of the Judiciary. 2 
That this was the view of the Virginia Convention is 
shown by the fact that during the exhaustive debate 
but two references were made to the power of the 
Judiciary. General Henry Lee (a Federalist), in dis- 
cussing the various steps which might be taken to 
counteract the obnoxious Congressional legislation, 
cited popular elections, amendment to the Constitution, 
and also that "the Judiciary was a source of correction 
of Legislative evil, a source fixed by the Constitution 
and adequate to our violations of the same." This 
assertion was answered by the radical Republican, 
John Taylor of Carolina, who, while admitting the 
power of the Judiciary, considered that "the Judges 
by the Constitution are not made its exclusive guard- 
ian." 3 So also in the replies to the Resolutions sent 
by the various State Legislatures of the North, while the 

1 Jefferson, VIII, letter to Archibald U. Rowan. Sept. 2(5, 1708; ibid,, V, letter 
to M. de Meusnier, .Ian. *:;. i?s<;. 

■ Madison, VI, :;:;-i, 841 n eeq. t 408; ihid., XI, letters to J. (\ Cabell, Sept. 7, 
1829, Edward Everett, Aug. 28. L880, ft. Y. Baynea, Jan. 1!>. 1 880, James Robert- 
son, March 27, 1881, Nicholas P. Trist, Ore. L831, William ('. Kivo, March 12, 
1833. See also Virginia Argus, Feb. 15, 1800. 

3 As to contrary views, see resolutions in Guardian of Freedom (Frankfort, Ky.), 
Aug. 7, Sept. 11, Oct. s. 17<)S; Timet ami Alexandria Advertiser (Va.), Oct. 
4, Nov. 1, 1798. See also letters in the newspapers, as, for instance, Virginia Argus, 
April 12, 1800, and Times and Alexandria Advertiser (Va.), Dec. l/>, 1798, letter 
of "The Independent of Dumfries" in reply to "Yirginiensis." 



THE MANDAMUS CASE 261 

majority members, being mostly Federalist, opposed 
the Virginia-Kentucky doctrines as unnecessary, since 
the Court was the final arbiter of constitutional ques- 
tions, the Republican minorities did not challenge 
the Court's power, but took the position that deci- 
sions as to constitutionality of Acts of Congress did 
not rest "soldi) with the Judicial Department", the 
individual States retaining power to oppose the deci- 
sion by political methods. 1 The Republicans had no 
disposition to deny the right of the Court to hold a 
statute invalid, for that which they feared was encroach- 
ment by Congress on the domain of the States and not 
encroachment by the Courts on the domain of Congress. 
The principle of State veto asserted by the Virginia and 
Kentucky Resolutions was intended to operate only 
in cases of a law judicially held constitutional; it had 
no reference to laws so held unconstitutional. That 
such was the contemporary view of the Resolutions 
is shown by the fact that the newspapers of the pe- 
riod, with very few exceptions, expressed no doubt as 
to the existence of the authority of the Judges to 
determine the invalidity of an Act of Congress ; for, 
as a Baltimore paper said : " It is their (the Judges') 
province and their duty to construe the Constitution 
and the laws, and it cannot be doubted but that they 

1 See Contemporary Opinions of the Virginia and Kentucky Resolutions, by Frank 
M. Anderson, Amer. Hist. Rev. (1899), V; State Documents on Federal Relations 
(1011), by Herman V. Ames. See also a widely reprinted editorial from the Al- 
bany Register, quoted in Virginia Argus, March 5, 1799 ; Independent Chronicle, 
Feb. 25, 1799 : "It is impossible to conceive a doctrine more opposed to the Con- 
stitution of our choice than that a decision as to the constitutionality of all Legis- 
lative acts rests solely with the Judiciary Department ; it is removing the corner- 
stone on which our federal compact rests ; it is taking from the people the ultimate 
sovereignty and conferring it on agents appointed for specified purposes; it is 
giving to an Administration the power of passing what laws they please, and of 
course a power to set at defiance the Constitution, whenever it may run counter to 
their projects of tyranny and ambition. ... If then a law is unconstitutional 
and oppressive, are the people bound by any one principle of the Federal compact 
to submit to its operation and to remain mere passive spectators, while their rights 
are not only taken from them, but, in fact, converted into engines of oppression?" 



262 THE SUPREME COURT 

will perform this duty faithfully and truly. They 
will perform it una wed by political debate, unin- 
fluenced by party zeal." 1 

So far as the Courts themselves had expressed their 
view, it was accurately stated by a State Judge shortly 
before the Marbury decision, that "until lately, there 
was but one opinion on this subject, it being uniformly 
conceded by the Bar and held by the Bench that the 
Court of Justice must necessarily possess and exer- 
cise the power." 2 As to Acts of Congress, the power 
had been asserted and exercised by the Federal Judges 
as early as 1792 in the Circuit Court in HayburrCs 
Case; and in 1799, the constitutionality of an Act 
of Congress had come before Judge Ellsworth in the 
Circuit Court and has been referred to the Supreme 
Court; 3 the constitutionality of the Federal carriage 
tax law had been considered and upheld by the Supreme 
Court in 1796 in Hylton v. United States.* By Judges 

1 Federal Gazette and Baltimore Daily Advertiser, March 2, 1799. See also inter- 
esting accounts of the actions of the various Legislatures, and letters from Vir- 
ginia, ibid., Jan. 2, T6, 22, 26, March 14, April 12, 1799. 

2 Emerich v. Harris (1803), 1 Rinney, 416, 422. 

3 As to this little-known case, see quotation from a Charleston (S. C.) paper 
in Albany Gazette, Nov. 21, 179!); Independent Chrnniele, Nov. 26, 1799: "We 
learn that the great question respecting the constitutionality of the . . . laws 
of Congress . . . giving a preference to debts due to the United States from an in- 
solvent debtor, even where a specific property is already vested in another creditor 
and before the United States had acquired any judicial lien on it, came before tli 
Federal Circuit Court in this city in the case of the United States against Hopkins and 
other assignees of Halliday ; but that it was thrown into the case of a special ver- 
dict to go before the Supreme Court for their decision, wherefore the opinions of 
the Circuit Court on the subject were dispensed with. It is to be regretted how- 
ever that a decision did not take place, as the law, if supported, will affect in a 
most important degree, the interest of those who rest satisfied with the idea that 
they are safe in having mortgages and other securities for their debts, and which 
the law of Congress contemplates to set aside in favor of the United States. From 
the reason of the case, however, the comparatively narrow prerogatives in this 
respect of the crown of England, and the great inconveniences resulting from such 
a law, as well as the unanimous opinion of our State ( lourt (in a late Case) against 
the unconstitutionality of the law, it is more probable that the same will be declared 
void by the Supreme Court of the United States." 

4 The power to pass upon the constitutionality of State statutes had been fre- 
quently exercised by the Federal Judges in the Circuit Courts; see supra, 66-69, 
and Minge v. Gilmour (179S), Federal Cases No. 9631; Ogden v. Withcrspoon 



THE MANDAMUS CASE 263 

of the State Courts, the power to declare State statutes 
invalid had been asserted or exercised in over twenty 
cases in eleven out of the fifteen States during the 
years between 1789 and 1802. 1 

In the Federal Convention in 1787 and in the State 
Conventions on the adoption of the Constitution, a 
majority of the Anti-Federalist statesmen had recog- 
nized the power and the necessity for its existence, 
Samuel Adams saying in debate in the Massachusetts 
Convention that any law made by the Federal Gov- 
ernment inconsistent with the Constitution "will be 
an error and adjudged by Courts of law to be void" ; 
and Patrick Henry saying in the Virginia Convention : 
"I take it as the highest encomium on this country 
that the acts of the Legislature, if unconstitutional, 
are liable to be opposed by the Judiciary. . . . The 
Judiciary are the sole protection against a tyrannical 
execution of the laws." Elbridge Gerry (who later 
served as Vice-President with Madison) had also 
recognized it when, in opposing a proposition to make 
the Judiciary a part of a council of revision to assist 
in the enactment of statutes, he said: ;< They will 
have a sufficient check against encroachments in their 
own department by their exposition of the laws, which 

(1802), Federal Cases No. 10461 ; but the exercise of this power arose, of course, 
under the jurisdiction granted by the Judiciary Act, and was based on a different 
reasoning from that which sustained the Court's action with reference to Federal 
legislation. 

1 For full compilation of these cases, see Committee Report in New York State 
Bar Association Proc, Jan. 22, 23, 1915, republished as Senate Doc. No. 91^1, 63d 
Cony., 3d Sess., Feb. 11, 1915. See also this report for full compilation of the views 
of Jefferson, Madison and the members of the Constitutional Convention of 1787. 
See also Committee's Third Report in New York State Bar Asso. Proc, Jan. 12, 
1917. And see especially on the subject of judicial review The Doctrine of Judicial 
Review (1914), by Edward S. Corwin; The Courts, the Constitution and Parties 
(1912), by Andrew C McLaughlin; Marshall, III, appendix for collection of au- 
thorities; Judicial Power and Unconstitutional Legislation (1893), by Brinton S. 
Coxe. For valuable magazine articles, see notes, infra, and American Ju- 
dicial Veto, by Noel Sargent, Amer. Law Rev. (1917), XLI; The Relation of the 
Judiciary to the Constitution (1919), by William M. Meigs; Marshall, III ei seq. 



264 THE SUPREME COURT 

involved a power of deciding on their constitutionality. 
In some States, the Judges had actually set aside laws 
as being against the Constitution. This was done 
too with general approbation." ! Most of the leading 
Federalist statesmen and framers of the Constitution 
had recognized the existence and necessity of the 
power of the Court. 2 In the debates in the First Con- 
gress on the organization of the Department of For- 
eign Affairs, there was similar recognition. 3 

Attempts have been frequently made to establish 
the claim that Jefferson, whatever his previous views 
may have been, was opposed to Marshall's decision 
in Marbury v. Madison because of the exercise of the 
so-called "judicial veto" of an Act of Congress. It 
is clear, however, that Jefferson's hostility was due 
solely to the fact that Marshall had sought to inter- 
fere with the function of the Executive in making 
appointments, and after holding the statute uncon- 
stitutional had proceeded by obiter dicta to deliver 
a lecture to the President as to the rights of appointees 
to office. 4 And it is equally clear that Jefferson 
expressly admitted that the Court had the right to 

1 Elliotts Debates, II. 181, III. W4, 587, V. 151. See also Records of the Federal 
Convention (1911), by Max Farrand, I. 97. 

2 See especially The Supreme Court t'surper or Grantee, by Charles A. Beard, 
Plrf. Set. Qu. (1918), XXVII; Tke Judicial Bulwark of the Constitution, by F. E. 
Melvin. Amer. Vol. Set. Her. (191 I), VIII. Bee also for ■ diverse view. The Judi- 
cial Veto (1919), by Horace A. Davis. 

8 See The Doctrine of Judicial Review (1914), by Edward S. Corwin, 51, citing 
speeches in the debates. 

« Jefferson, X. 390 note letter to George Hay. June f, 1807: "On this I shall 
ever act, and maintain it with the powers of the government, against any control 
which may be attempted by the Judges, in subversion of the independence of the 
Executive and Senate within their peculiar department. I presume, therefore, 
that in a case where our deeision is by the Constitution, the supreme one, and that 
which can be carried into effect, it is the constitutionally authoritative one and 
that that by the Judges was coram non judicc, and unauthoritative because it can- 
not be carried into effect. I have long wished for I proper occasion to have the 
gratuitous opinion in Marbury v. Madison broughl before the public, and denounced 
as not law, and I think the present a fortunate one, because it occupies such a place 
in the public attention." 



J&c 



THE MANDAMUS CASE 265 

decide upon the constitutionality of a law, so far as to 
enforce its decision upon the parties ; and he only 
denied that such a decision was binding upon him as 
President in the performance of his purely Executive 
functions. Writing in 1804 on the question of his par- 
don of those who had been convicted under the Sedition 
Law, he said : 'The Judges, believing the law constitu- 
tional, had a right to pass a sentence of fine and 
imprisonment ; because that power was placed in their 
hands by the Constitution. But the Executive, believ- 
ing the law to be unconstitutional, was bound to remit 
the execution of it ; because that power has been con- 
fided to him by the Constitution. The instrument 
meant that its co-ordinate branches should be checks 
on each other. But the opinion which gives to the 
Judges the right to decide what laws are constitutional, 
and what not, not only for themselves in their own 
sphere of action, but for the Legislative and Execu- 
tive also in their spheres, would make the Judiciary 
a despotic branch." 1 This was the doctrine which he 
had set forth in a passage in a draft of his first message 
to Congress, December 8, 1801, but which he had 
omitted before its delivery : 2 

1 Jefferson, X, 88, note, letter to Mrs. John Adams, Sept. 11, 1804. 

2 This omitted passage was first discovered and made public by Charles A. 
Beard in his Economic Origins of Jeffersonian Democracy (1915), 454, 455. See 
also Marshall, III, 52, Appendix A. The doctrine that the President in his Exec- 
utive functions was not obliged to follow a decision of the Court was asserted, six 
months later, by Attorney-General Levi Lincoln in an opinion rendered to Jeffer- 
son, June 25, 1802, as to the effect of the decision in the case of United States v. 
Schooner Peggy, 1 Cranch, 103 : "The Supreme Court who were competent to decide 
this principle have determined it in her case. It must, therefore, be considered 
as binding in this particular instance. Although they have fixed the principle for 
themselves and thereby bound others in reference to the case on which they have 
adjudicated, it can, I conceive, extend no further. In all other cases in which the 
Executive or other Courts are obliged to act, they must decide for themselves, 
paying a great deference to the opinions of a Court of so high an authority as the 
Supreme one of the United States, but still greater to their own conviction of the 
meaning of the laws and Constitution of the United States and of their oaths to 
support them." Ops. Attys.-Gen., I, 119. 



266 THE SUPREME COURT 

Our country has thought proper to distribute the powers 
of its Government among three equal and independent 
authorities, constituting each a check on one or both of the 
others, in all attempts to impair its Constitution. To make 
each an effectual check, it must have a right in cases which 
arise within the line of its proper functions, where, equally 
with the others, it acts in the last resort and without appeal, 
to decide on the validity of an act according to its own judg- 
ment and uncontrolled by the opinions of any other depart- 
ment. . . . 

In other words, Jefferson claimed the right to pass upon 
the validity of an Act of Congress, in the performance 
of his purely Executive functions as President, in 
exactly the same fashion as he recognized the right of 
the Court so to do in performing its judicial functions. 1 
The fact is that the opposition to the Judiciary 
during the early years of the nineteenth century, found 
in both the Republican and the Federalist' parties, was 
directed not so much at the possession of the power of 
the Court to pass upon the validity of Acts of Con- 
gress, as at the effect of its exercise in supporting or 
invalidating some particular measure in which the 
particular political party was interested. So far from 
denying the existence of the power to pass upon the 
constitutionality of the detested Sedition Act or of the 
obnoxious United States Bank Charter, the Republicans 
in 1800 and in 1819 complained of the Federal Court 
for its failure to declare these Acts to be unconstitu- 
tional; and prior to 1800 (as has been shown in a 
previous chapter) it was the Republicans (or Anti-Fed- 
eralists) who had especially championed the right of 
the Court to protect the people and the States against 
the passage of unconstitutional laws by the Legis- 

1 Edward S. Convin in The Supreme Court and UncOMtUutional A els of Congress, 
Mich. Law Rev. (1906), IV, says: "Yel 1 cannot find thai Jefferson ever actually 
denied the right of the Supreme Court to judge of the validity of Acts of Con- 
gress." 



THE MANDAMUS CASE 267 

latures. So, in the same manner, the Federalists in 
1808 assailed the Federal Courts for failing to hold 
the hated Embargo Act unconstitutional. Unques- 
tionably, if the Court had held either the Sedition Act, 
the Embargo or the Bank Charter unconstitutional, 
the party offering those laws would have warmly ap- 
plauded its action, and would have been little con- 
cerned over the question of the existence of the power 
of the Court. The history of the years succeeding 
1800 clearly shows that, with regard to this judicial 
function, the political parties divided not on lines of 
general theory of government, or of constitutional 
law, or of Nationalism against Localism, but on lines 
of political, social or economic interest. 1 

It was not until the issue of State-Rights arose in 
the series of cases, beginning about 1815, that the 
Court became especially obnoxious to Jefferson and 
to the South in general ; 2 but the antagonism then 

1 This thought has been well phrased by a recent legal historian as follows : "In 
the field of Federal law and politics, the conflict between the Republicans and the 
Federalists was over economic issues and not over any mere adjustments of the 
Constitutional system." Economic Origins of J effersonian Democracy (1915), by 
Charles A. Beard, 456. 

2 The first published letter of Jefferson attacking the power of the Judiciary to 
pass on the validity of statutes was written to W. H. Torrance, June 11, 1815, in 
regard to the action of a Tennessee State Court in holding a Tennessee stay-law 
invalid. See also letters to Spencer Roane, Sept. 6, 1819; W. C. Jarvis, Sept. 
28, 1820; Thomas Ritchie, Dec. 25, 1820; Archibald Thweat, Jan. 19, 1821; 
Spencer Roane, March 9, 1821; Archibald Thweat, Dec. 24, 1821; Nathaniel 
Macon, Aug. 19, Oct. 20, 1821; James Pleasants, Dec. 20, 1821; William John- 
son, Oct. 27, 1822, March 4, 1823, June 12, 1823. Other letters as to the power 
of State Courts to declare a State law invalid addressed to Jefferson seem to have 
remained unanswered by him. See letter of John H. Coleman, July 16, 1822, as 
to a Kentucky stay-law; and from Christopher H. Williams, Aug. 17, 1824, as to 
a Mississippi law. Jefferson Papers, Mass. Hist. Soc. Ass. A letter from Leonard 
J. Williams of the Ohio Legislature, July 28, 1809, asking Jefferson's opinion 
as to the power of the State Judges to hold an Ohio law invalid, and saying : 
"The question has agitated our State for two or three years and still threatens 
us with unpleasant forebodings. It has divided the Republicans into two contend- 
ing parties," does not appear to have received any answer. Thomas Jefferson Cor- 
respondence. Printed from the Originals in the Collection of William K. Bixby 
(1916). Western Law Monthly, I, and History of Ohio, by Emilius O. Randall 
and Daniel J. Ryan, III, 155-162, V, 188-220. 



268 THE SUPREME COURT 

aroused was over the exercise of a wholly different 
power, granted by the Twenty-Fifth Section of the Ju- 
diciary Act with respect to a conflict between State 
and Federal authority. Such action by the Court 
did not involve in any way the question of the right 
of the Court with respect to the acts of a coordinate 
department of the Federal Government. And had the 
Court then held the Judiciary Act unconstitutional, 
as the Republicans claimed it to be, its hottest opponents 
would have welcomed its action and would have found 
nothing to criticize in judicial power over Federal leg- 
islation, if exercised to such an end. 



CHAPTER SIX 
IMPEACHMENT AND TREASON 

1803-1808 

That the decision in Marbury v. Madison did not 
evoke more hostility at the time it was rendered was 
undoubtedly due in part to the fact that another case 
was decided by the Court, only six days later, in a man- 
ner highly satisfactory to the Republicans. On March 
2, 1803, an opinion was rendered by Judge Paterson 
in Stuart v. Baird, 1 C ranch, 299, sustaining the con- 
stitutionality of the Circuit Court x\ct of 1802, and 
finally setting at rest the bitter political struggle over 
this legislation. The result was as pleasing to the 
Administration party as it was unexpected. Two 
constitutional questions had been involved — one as 
to the right of Congress, by repealing the Act of 1801, 
to abolish the judicial positions therein created ; the 
second as to the right of Congress to impose upon the 
Supreme Court Judges the duty of sitting in the new 
Circuit Courts. Immediately after its enactment in 
1802, Chief Justice Marshall, finding that the June 
session of the Court had been abolished and that it was 
thus prevented from considering the question in banc, 
communicated with his Associate Judges, asking for 
their opinion whether they should comply with the 
new statute by performing the Circuit duty prescribed 
by it. 1 Writing to Judge Paterson, he said: "I hope 

1 The correspondence of Marshall on this subject appears hitherto to have es- 
caped the attention of legal historians, and is to be found in Paterson Payers MSS, 
George Bancroft transcript, in the New York Public Library, letters of Marshall 
to Paterson, April 6, 19, May 3, 1802; letters of Judge Samuel Chase to Paterson, 



270 THE SUPREME COURT 

I need not say that no man in existence respects more 
than I do those who passed the original law concerning 
the Courts of the United States, and those who first 
acted under it," nevertheless, he continued, after 
giving the subject independent investigation, he had 
formed an opinion, "which I cannot conquer, that the 
Constitution requires distinct appointments and com- 
missions for the Judges of the inferior Courts from 
those of the Supreme Court. It is, however, my duty 
and my inclination, in this as in all other cases, to be 
bound by the opinion of the majority of the Judges, 
and I should therefore have proceeded to execute the 
law so far as that task may be assigned to me, had 
I not supposed it possible that the Judges might be 
inclined to distinguish between the original case of 
being appointed to duties marked out before their 
appointments, and of having the duties of administer- 
ing justice in new Courts imposed after their appoint- 
ments." After stating that his opinion was that there 
was no distinction, he said that he would be guided 
by the view of his Associates; and he concluded with 
a very striking appreciation of the seriousness of the 
decision now to be made: 'This is a subject not to be 
lightly resolved on. The consequences of refusing to 
carry the law into eifeet may be very serious. For 
myself, personally, I disregard them; and so, I am 
persuaded, does every other gentleman on the Bench 
when put in competition with what he thinks his 
duty, but the conviction of duty ought to be very 
strong before the measure is resolved on. The law- 
having been once executed will detract very much, in 

April 6, 24, 1802; very long letter of Chase to Marshall, April 24, 1802, giving in 
detail his views as to the unconstitutionality of the Act , Utters of Judge William 
Cushing to Paterson, May M, June :*. 1808. See also an article by James Kent 
in New York Review (1838), III, in which it is said the fads as to Marshall's action 
had theretofore never "found their way into print." 



IMPEACHMENT AND TREASON 271 

the public estimation, from the merit or opinion of 
the sincerity of a determination not now to act under 
it." Replying to the inquiries of the Chief Justice 
for their opinion, Judges Paterson, Cushing and Wash- 
ington all concurred in holding that, inasmuch as all 
the Judges first appointed to the Supreme Court had 
acquiesced in the statute requiring performance of 
Circuit duty, the question of constitutionality must be 
regarded as settled, though if the point had been new 
a doubt might arise. Judge Chase, on the other hand, 
expressed his view that the Act was unconstitutional 
and his earnest hope that the Judges should meet 
together and consult as to their future action, saying: 
"The burthen of deciding so momentous a question, 
and under the present circumstances of our country, 
would be very great on all the Judges assembled, but 
an individual Judge, declining to take a Circuit, must 
sink under it." Accurately prophetical, he added : 
"I believe a day of severe trial is fast approaching 
for the friends of the Constitution; and we, I fear, 
must be principal actors, and may be sufferers, therein." 
Finding that the majority of the Judges favored com- 
plying with the statute, Marshall wrote to Paterson 
that he was "privately gratified" and should "with 
much pleasure acquiesce in it, though if the subject 
had never been discussed, I should feel greatly embar- 
rassed about it, myself." Accordingly /the Chief Justice 
and his Associates proceeded to hold their Circuit 
Courts as usual, much to the relief of the Republicans 
who unquestionably had anticipated that Marshall 
intended to overturn their legislation, and who now 
openly commended him for his course of action. In 
March, 1803, however, the question of the power of 
Congress to impose Circuit duty upon the Supreme 
Court Judges came before the Court in a case appealed 



272 



THE SUPREME COURT 



from the Circuit Court, Stuart v. Laird, and the Court 
formally sustained the constitutionality of the statute. 
It held that as the original Judiciary Act of 1789 
contained provision for Circuit Court duty and as the 
Judges had performed such duty for twelve years, this 
practice and acquiescence for a period of several 
years commencing with the organization of the judi- 
cial system " affords an irresistible answer, and has 
indeed fixed the construction. It is a contemporary 
interpretation of the most forcible nature. This 
practical exposition is too strong and obstinate to be 
shaken or controlled. Of course, the question is at 
rest, and ought not to be disturbed. " l No more strik- 
ing example of the non-partisanship of the American 
Judiciary can be found than this decision by a Court 
composed wholly of Federalists, upholding, contrary 
to its personal and political views, a detested Republican 
measure ; and the case well justified the comment 
made by William Rawle in his View of the Constitution 
in 1825, that it illustrated the fortunate truth that in 
this Republic "party taint seldom contaminates judi- 
cial functions." It is interesting to note that the 
decision evoked from the most politically hostile papers 
of the day warm commendation of Marshall for "this 
one memorable act in supporting t lie Government on 
the question of the repeal of Judiciary Law (which) 
stands a living reproach to such as can believe . . . 
that you would surrender the chastity of the Court 
to the lust of envy. . . . The weight of your authority 



1 A suit was instituted by one of the deposed Circuit Judges in the 3d Circuit 
in New Jersey, Joseph Reed v. Joseph Prudden, presenting the question of the 
constitutionality of the repealing Act of 1802, and the power of the Supreme Court 
Judges to sit in the Circuit Courts. See Charleston Courier, May 9, 1803; Wash- 
ington Federalist, May 13, 1803; New England Palladium, April 19, 180.'* 
also National Intelligencer, Oct. 4, Nov. 1, 1802, for account of another case pre- 
senting the question, before Judge Washington and Judge Law in the Circuit Court 
in Connecticut. 



IMPEACHMENT AND TREASON 273 

then calmed the tumult of faction, and you stood, as 
you must continue to stand, a star of the first magni- 
tude." x 

Both of the cases decided at this 1803 Term having 
unexpectedly resulted favorably to the Republican 
party, talk of the impeachment of the Judges relapsed 
during March, April and May of that year, though 
Jefferson himself still remained deeply irritated over 
Marshall's dicta in the Marbury Case and over the 
attempted, though unsuccessful, encroachment on his 
Executive power. Towards the end of May, how- 
ever, Judge Samuel Chase gave the opportunity for 
which the Republicans had long been waiting to 
launch their attack on the Federal Judiciary. Of all 
the Judges, no one was more hated than Chase. His 
unnecessarily strenuous support of the Sedition Law, 
his prejudiced and passionate conduct of the trials 
of the two Republicans, Thomas Cooper and James 
T. Callender, under this law, his arbitrary and unusual 
rulings in the trial of John Fries for treason in resisting 
the Federalist direct tax laws, and his personal traits 
had long subjected him to vicious and unmeasured 
attack. The Aurora had charged that his disposition 
was so arbitrary and his temper so ferocious and dis- 
regardful of decorum that "few men, perhaps, hold 
an humbler estimation among his fellow citizens." 2 
The active part which Chase had taken in behalf of 
Adams in the Presidential campaign had been partic- 
ularly obnoxious to Jefferson and his party. "What 
would be the astonishment of the people of Great 

1 Aurora, April 26, 1803; Republican Watchtower (N. Y.), May 19, 1803; Vir- 
ginia Argus, April 20, 1803 — all Republican papers. It is to be noted, however, 
that Marshall (as Cranch stated in his Reports) "having tried the cause in the 
Court below declined giving an opinion." The Court's decision affirmed the judg- 
ment in the Court below, which had been rendered on the technical sufficiency 
in form of the defendant's plea. 

2 Aurora, Jan. 15, 1801. 



274 



THE SUPREME COURT 



Britain if a Judge of the Supreme Court of that Nation 
should from the bench while the Court were in session 
make an inflammatory, electioneering harangue to the 
people in favor of the person of his choice ? " wrote a 
newspaper correspondent in 1800. "What would be 
their distress in seeing the same Judge mounting the 
tub at an electioneering meeting of the people . . . and 
there expose the dignity of the National Judiciary to 
the coarse gibes and scoffing jokes of every mischievous 
bystander?" And Charles Pinckney wrote: "What 
think you, my friends, of our Supreme Judges elec- 
tioneering at towns and county meetings, those grave 
and solemn characters who ought to be retired from 
the public eye, who ought never to be seen in numerous 
assemblies or mingle in their passions and prejudices, 
and who, with respect to all political questions and 
characters, ought ever to be deaf and blind to every- 
thing except what they hear in evidence? Can a 
man, brought before such Judges for sentiments ex- 
pressed at an election, expect a fair trial, particularly if 
his expressions have been levelled at the candidate 
those Judges have been electioneering to support?" l 
Chase, moreover, had been prominent among those 
Judges who had delivered political charges to the Fed- 
eral Grand Juries. Yet neither form of his political 
activity had hitherto been regarded as sufficient ground 
for impeachment. So strong and prominent a Repub- 
lican as Nathaniel Macon, Speaker of the House since 
1801, while stating his belief in Chase's "mental deprav- 
ity", had expressed grave doubts whether a Judge 
ought to be impeached, "for expressing to a grand 
jury political opinions which every man was permitted 
to hold and express elsewhere"; and he asked.: "Is 

1 Virginia Argus, Aug. 15, 1800, Philadelphia dispatch from the Aurora, letter 
of "an Englishman"; see ibid., Aug. 19, 22, 1800; Charleston Gazette, Sept. 13, 
1800. 



IMPEACHMENT AND TREASON 275 

error of opinion to be dreaded when inquiry is free? 
Is the liberty of the press of any real value when the 
political charges of a Judge are dreaded?" 1 More- 
over, the general standards of that day did not demand 
so complete a separation of the judicial and political 
fields of action as was required at later periods. At 
the very outset of the new Government, Jay had held 
for six months the offices of Chief Justice and of Sec- 
retary of State of the United States, he ran for election 
as Governor of New York while still on the Bench, 
and for over a year he had been both Chief Justice and 
Ambassador to England in 1794; Ellsworth was for 
a year and a half Chief Justice and Minister to France ; 
Cushing while on the Bench ran for Governor in Massa- 
chusetts in 1794 ; 2 Bushrod Washington was active 
in the Presidential campaign in 1800 in support of 
Charles C. Pinckney ; 8 and Marshall served both as 
Chief Justice and Secretary of State for over a month 
in 1801. In the State Courts, three Judges of the Su- 
preme Court of New Hampshire acted as Presidential 
electors ; Chief Justice Dana of Massachusetts in a 
charge to the Grand Jury denounced the Vice-President 
and the minority in Congress as "apostles of atheism 
and anarchy, bloodshed and plunder"; Judge Addi- 

1 Joseph H. Nicholson Papers MSS, letters of Macon to Nicholson, July 26, Aug. 
6, 1803; The Congressional Career of Nathaniel Macon, in James Sprunt Hist. 
Monographs No. 8 (1902). 

2 The Anti-Federalist Boston Gazette, April 7, 1794, attacked Judge Cushing 
for his actions as a Federal Judge: "The citizens of New York, says a correspond- 
ent, gave a noble example, a year or two past, of their attachment to the sovereignty 
and independence of their State Government by rejecting from the Chair of First 
Magistrate a Federal Judge, notwithstanding the continued efforts of all Aristo- 
crats and Tories with their powerful engines of bribery and corruption, to influence 
the citizens in the election for Judge Jay. The citizens of Massachusetts will fol- 
low the example of their brethren and show to the world that an officer in a foreign 
Government, who has warmly plead against the interest of this Commonwealth 
has no claim or pretension to the suffrage of its citizens, for Judge Cushing has for- 
saken Massachusetts and plead in this Federal Court against her independence." 

3 See Life and Times of George Cabot (1877), by Henry Cabot Lodge, letter of 
Cabot to Hamilton, Nov. 29, 1800. 



276 THE SUPREME COURT 

son in Pennsylvania in 1800 delivered speeches in favor 
of President Adams to the Grand Jury; Chancellor 
Livingston of New York, and Chief Justice McKean 
of Pennsylvania engaged in the most active of partisan 
politics. 1 It is clear, therefore, that mere political 
activity had not been regarded as unfitting a Judge 
for his position. But while no action had been taken 
towards carrying into effect the threats of impeach- 
ment which had been hanging over Chase for three 
years, the Republican party was merely waiting for 
a favorable opportunity. It came in May, 1803, when, 
within three months after the decision of the Supreme 
Court in the Marburj) Case, the Judge delivered a long 
charge to the Federal grand jury in Baltimore, in 
which he took occasion to express his views regarding 
certain State and Federal legislation. He attacked 
the Act abolishing the Circuit Judges, saying that 
44 the independence of the National Judiciary is shaken 
to its foundation" ; he also attacked the new State 
Constitution of Maryland and universal suffrage, which 
he said would " certainly and rapidly destroy all 
protection to property and all security to personal 
liberty, and our republican Constitution will sink 
into a mobocracy"; it was also reported that he had 
said that "the present Administration was weak, 
relaxed and not adequate to a discharge of their func- 
tions, and that their acts flowed, not from a wish for 
the happiness of the people but for a continuance in 
unfairly acquired power." The report of his charge 
containing this alleged criticism was published in the 
National Intelligencer, which bitterly assailed this 
"extraordinary performance" of the Judge, and closed 
with these words: "Such, citizens of the United 

1 Aurora, Dec. 4, 1798; State Trials of the United States (1849), by Francis Whar- 
ton, 46-47. 



IMPEACHMENT AND TREASON 277 

States, is the offspring of a Judge of the Supreme 
Court of the United States, a member of that venerable 
and sacred Bench constituted by you the guardian of 
your rights and liberties ! " This article was widely 
republished in papers throughout the country, and 
was assailed or defended, according to the partisan 
bias of each paper. 1 Though Judge Chase repudiated 
the accuracy of the report of his charge, so far as it 
was said to have contained any attack on the Admin- 
istration, it is difficult to believe that he was not firing 
directly at Jefferson when he used the following lan- 
guage : 'The modern doctrines by our late reformers, 
that all men in a state of society are entitled to enjoy 
equal liberty and equal rights, have brought this mighty 
mischief upon us, and I fear that it will rapidly destroy 
progress, until peace and order, freedom and property 
shall be destroyed." 2 At all events, there was no 
doubt that he had criticized the repeal of the Circuit 
Court Act which had been one of the pet measures of 
the President, and Jefferson was in no mood to over- 
look such criticism by a Judge on the Bench. "Ought 
this seditious and official attack on the principles of 
our Constitution and on the proceedings of the State 
to go unpunished?" he wrote to Joseph H. Nicholson, 

1 See National Intelligencer, May 20, 1830; the Aurora, May 24, 27, 1803. The 
Virginia Argus said, June 11, 1803 : "Was this man placed in his high office by the 
people to become the calumniator of the government of their choice; or was he 
not rather placed there to administer justice conformable to the Constitution of 
the United States ? Is it proper, is it decent that this man should be forever mak- 
ing political speeches from the Bench? ... I hope, for the honor of the Federal 
Judges, that he is singular in his political tenets. If he be not, they will prove a 
curse instead of a blessing to this country." 

On the other hand, the Charleston Courier, a Federalist paper, June 7, 1803, 
spoke of Chase as "a magistrate distinguished no less for his integrity and patriot- 
ism than for wisdom, penetration, sagacity, and legal and constitutional knowl- 
edge", and on June 8, it said : "We feel that the attacks which have been made, 
first upon the Judiciary in general, and afterwards upon the constitutional rights 
of the Judges, call loudly for animadversion." 

2 See letter to Baltimore Anti-Democrat, June 25, Sept. 5, 1803 ; Washington 
Federalist, July 20, Aug. 5, 1803. 



278 [THE SUPREME COURT 

one of his party leaders in Congress ; and at the advice 
of most of the Republican press and pursuant to the 
President's wishes, conferences were at once held 
among the leading Republicans, with a view to the 
institution of impeachment proceedings against Chase. 1 
The move was regarded by the Federalists as an attempt 
to overawe and eliminate the Judicial branch of the 
Government by the Executive and Legislative. "We 
see these last," said the Charleston Courier, "shaking 
hands and conspiring for the overthrow of that third 
branch of the Constitution — the Judiciary — in which 
the Constitution deposited the right of expounding 
and administering the laws, to prevent, not by its 
own discretionary power, but by a just application 
of the letter of the law to cases as they might arise, 
any excesses, any attempts by the other two parts or 
either of them. ... It is a mountain that must be 
got out of the way; and not only the Faction cry it 
down and dare to strike at its awful head, but the 
Legislative conspire to cripple, not to utterly destroy 
it to be sure, but to palsy and put it into a state of 
non-effective, impotent existence. And now the coun- 
try can discern in it only the shadow of a departed 
protector. . . . Why is the Judiciary become hateful 
to the democratic party ? Because it is the only 
security against their designs." 2 "I understand that 
it is the intention of the party to impeach every Judge, 
who in his charge has given a political opinion," wrote 
Timothy Pickering to his correspondents. 3 'The 
Judges of the Supreme Court are all Federalists. 
They stand in the way of ruling power. Its satellites 

1 See Aurora, March 31, June 15, 1803; Jefferson, X, letter of May 13, 1803. 

2 Charleston Courier, June 9, 10, 13, 1803. 

3 Pickering Papers MSS, letter of Pickering to Higginson, Jan. 6, 1804 ; Life 
and Letters of George Cabot (1877), by Henry Cabot Lodge, letter of Pickering to 
Cabot, Jan. 29, 1804. 



IMPEACHMENT AND TREASON 279 

also wish to occupy their place. The Judges, there- 
fore, are, if possible, to be removed. Their judicial 
opinions if at all questionable, though mere errors 
of judgment, are interpreted into crimes and to be 
grounds of impeachment." While this prediction was 
not fulfilled, the Republicans were determined on 
making an example of at least one Judge ; and accord- 
ingly on January 6, 1804, the House of Representa- 
tives appointed a committee "to enquire into the 
judicial conduct of Samuel Chase, one of the Associate 
Justices of the Supreme Court of the United States, 
and to report their opinion whether the said Samuel 
Chase hath so acted in his judicial capacity as to 
require the interposition of the constitutional power of 
the House. " 

The attitude of the Republicans toward the impeach- 
ment was well illustrated by an editorial in the Inde- 
pendent Chronicle: '"Whence and for what cause has 
originated this novel cry about the sanctity and im- 
punity of Judges? It seems as if they had a charter 
from heaven to do as they pleased, and it was sin 
against the elect to say, why do ye so? . . . Judge 
Chase has tried many a man, and doubtless acquitted 
some. It is his turn now to be tried, and this will 
be performed by at least as good and learned men as 
himself . . . namely the Senate of the United States. 
And doubtless that degree of justice that he has meted 
to others will be shown to him. His enemies wish 
him nothing worse." And the Aurora said: "The 
impeachment does not endanger the Constitution or the 
just independence of the Judiciary ; the declaration 
that it does, if credited, would be highly injurious, 
for if it can once be believed that a properly con- 
ducted inquiry and trial are dangerous to the Judici- 
ary branch of government, adieu to the benefits which 



280 THE SUPREME COURT 

ought to be derived from the responsibility of the 
Judges." And again it said: "Let everyone pray 
that the abhorrence of the Nation for the conduct 
of this Judge may be speedily evidenced by his expul- 
sion from office by their representatives. Never, 
never was the Bench so much disgraced as by Judge 
Chase ; talk of Jeffries, and in comparison with Chase, 
he was a faithful officer and honest man." l 

On the other hand, the extreme Federalist view was 
illustrated by the Columbian Centinel, in Boston, which 
said that : "The high confidence reposed in him by his 
countrymen and Washington is the best voucher of his 
integrity. Incorruptible in all his views, he fears not 
investigation ; and though he knows how feeble is the 
barrier of innocence, when opposed by party spirit and 
power, he bears up with dignity under the load of 
obloquy ; and posterity will say of him he was * the 
man who dared to be honest in the worst of times.' " 2 
And the Connecticut Courant said that: 'This is a 
subject of such vast importance to the whole people 

1 Independent Chronicle, said Jan. 30, 1804; see ibid., April 20, 1804: "His char- 
acter is not only suspected but spotted by a series of arbitrary and iniquitous 
conduct which would have added a deeper line to the infamy of Jeffries himself." 
Aurora, March 21, 22, 1804; the National Aegis (Worcester. Mass.) said, Jan. 
25, 1804: "All the Federal papers . . . seem to be in a terrible flustration " ; ibid., 
March 14, 21, 28, May 2, 1804. 

2 Columbian Centinel April 14, 1804; Connecticut Courant, Feb. 27, 1805. The 
correspondence of William Plumer, Senator from New Hampshire at this time, in 
1804, shows the genera] view of the Federalists in Washington. On Jan. 26, he 
wrote as to "the attempt to break down and destroy the security and independ- 
ence of the Judiciary, the constitutional bulwark of freedom and make it sub- 
servient to the- Executive" ; on Feb. 2: "To secure the re-election of Jefferson 
the Constitution is now to be changed. To increase his power and influence, the 
Judges of the Courts of Law are to be removed; impeachments are to succeed 
impeachments, till every Judge of the Supreme Court are not only removed but 
disqualified to hold an office, when more pliant minds and accommodating opin- 
ions will succeed"; on March 17: "It seems to be understood by the Sect that 
for a Judge to be impeached and to be convicted and removed from office are 
synonymous terms, except as to the time of removal " ; on March 19 : " Impeach- 
ments are to be considered only as signals given by the House to the Senate to 
remove Judges from office, and the question is not — whether the accused is guilty 
of crimes, but, must he be removed ?" Plumer Papers MSS. 



IMPEACHMENT AND TREASON 281 

of the Union that it cannot fail to excite the earnest 
attention of all men of sober reflection. The first 
object of the mammoth of faction was to level with 
the dust the National Judiciary, or at least to render 
it completely subordinate to the other branches of the 
government. This object being in a manner effected, 
the next was to hang a rod over the bench of justice by 
degrading and displacing those of the Judges who had 
rendered themselves most obnoxious to certain violent 
demagogues. Judge Chase was marked for the first vic- 
tim. . . . All possible means have been used to embit- 
ter the public mind against him and to consign him to 
infamy and execration. . . . Behold this aged patriot, 
one of the pillars in our revolutionary struggle, 
rudely dragged by a Virginian stripling before the Na- 
tional tribunal." 

These examples are typical of the attacks and de- 
fenses of the Judge which appeared throughout the 
country. Both were exaggerated. Chase was not 
a Jeffries ; neither was he a Marshall. He was at 
this time sixty -four years of age ; he had been in the 
practice of the law for forty years. Joseph Story, 
who paid him a visit, two years later, described him as 
"the American Thurlow, bold, impetuous, overbear- 
ing and decisive . . . but with all his plainness of 
manners, I confess that he impressed me with respect." 
District Judge Richard Peters wrote of him in 1804 : 
"Of all others, I like the least to be coupled with 
him. I never sat with him without pain, as he was 
forever getting into some intemperate and unnecessary 
squabble." * The acts for which he was now to be im- 

1 Peters continued : "If I am to be immolated, let it be with some other victim 
or for my own sins." Pickering Papers MSS, XXVII, 46; and again he wrote, 
ibid., XXXI, 101 : "Chase started with me on the grand pas. I gave him a com- 
plete tongue lashing ; after which he was broke in, and perfectly manageable. Yet 
I narrowly escaped sharing in the consequences of his hasty measures, which I 



282 THE SUPREME COURT 

peached certainly did not arise out of corrupt or im- 
proper motives ; neither were they intentionally ar- 
bitrary or illegal; nor were they "prompted by a 
spirit of persecution and injustice" as charged; but 
they were undoubtedly such acts as a calm and scrupu- 
lous Judge would not have committed. It is unneces- 
sary to recite them in detail. In general, they con- 
sisted of legal rulings and course of conduct towards the 
defendants and their attorneys in the trials of John 
Fries and James Callender in 1800 ; of his unsuccess- 
ful attempt to secure an indictment under the Sedition 
Law in Delaware ; and of his charge to the grand jury 
in Baltimore in 1803. Of all of these, the last only 
would, in calmer days, have been deemed a ground 
for impeachment. But party spirit ran high ; politics, 
rather than legal discrimination, moved Congress ; 
and the general public seemed to accept the fact that 
the prosecution was a purely party move. "There 
was a time," wrote Fisher Ames, "when I was fool- 
ish enough to think the examination of a public ques- 
tion of some public importance ; but since party rea- 
sons are the only ones sought for and regarded, I am 
duly and humbly sensible of the impertinence of urging 
any other. . . . You may broil Judge Chase and eat 
him, or eat him raw ; it shall stir up less anger or pity 
than the Six Nations would show if Cornplanter or Red 
Jacket was refused a belt of wampum." l 

Meanwhile, during the violent political discussion 
over impeachment of one of its members, the Court 
met for its regular Term in February, 1804, and dis- 
posed of the unusual number of twenty-two cases. 2 

highly and decidedly disapproved." See also long letter from Peters to Pickering, 
Jan. 24, 1804, describing the Fries and Cooper trials. Peters Papers MSS. 

1 Works of Fisher Ames (1854), letter of Jan. 20, 1805. 

2 The beginning of the Term in 1804, was thus described by the Washington 
Federalist, Feb. 9: "On Monday (Feb. 6) the Supreme Court of the United 



IMPEACHMENT AND TREASON 283 

In two of these, it again displayed the high independ- 
ence in its relation to the Executive which had charac- 
terized it from the outset ; and those Republican par- 
tisans who considered the opinion in the Marbury 
Case to be an attack upon President Jefferson were 
now shown that the Chief Justice was equally pre- 
pared to attack the acts of other Presidents. In 
Little v. Barreme, 2 Cranch, 170, which had been argued 
at the December Term, 1801, by Samuel Dexter 
against Martin and Mason, and an opinion in which 
was not delivered until February 27, 1804, Marshall 
held that Presidential instructions issued by Presi- 
dent Adams, if not in accord with the statute, were 
of no avail to protect an officer acting under them, and 
that "the instructions cannot change the nature of 
the transaction, or legalize an act which, without these 
instructions, would have been a plain trespass." * "I 
confess," said Marshall, "the first bias of my mind was 
very strong in favor of the opinion that, though the 
instructions of the Executive could not give a right, 
they might yet excuse from damages. ... I have 
been convinced that I was mistaken." And in an- 
other case at this Term, the Court showed its de- 
termination to confine Executive power to its lawful 
limits, when in Murray v. The Schooner Charming 
Betsy, 2 Cranch, 64, upon an offer by counsel to read 
certain instructions of President Adams, Judge Chase 

States commenced its session in Washington. On Tuesday, the Chief Justice and 
the Associate Justices, Cushing, Chase and Washington attended and proceeded 
to business. Judge Paterson is not yet sufficiently recovered from the great injury 
he sustained from being upset on his way home from Albany last fall to be able to 
travel. Judge Moore (of North Carolina) is daily expected. There is much im- 
portant business before the Court, this Term." 

1 Hampton L. Carson in his History of the Supreme Court, 209, makes the mistake 
of stating or assuming that the instructions were issued by President Jefferson 
and that it was Jefferson whose action Marshall was attacking in this case. It 
is interesting to compare this case with the doctrine of law upheld by the German 
Court at Leipzig, in 1921, in the trial of German war criminals. See Superior 
Orders and War Crimes, by George A. Finch, Amer. Journ. Int. Law (1921), XV, 



284 THE SUPREME COURT 

remarked that "he was always against reading the 
instructions of the Executive; because, if they go 
no further than the law, they are unnecessary ; if they 
exceed it, they are not warranted." * That the Court 
was equally strict in restraining the Legislative branch 
of the Government from overstepping its proper bounds 
was shown in Ogden v. Blackledge, 2 Cranch, 272. This 
case, involving the payment of a British debt and 
arising on certificate of division of opinion by the Judges 
of the Circuit Court in North Carolina, presented 
the question whether a statute of limitations enacted 
in 1715 had been repealed by a later statute of 1789 
inconsistent in terms, a still later statute of 1799 hav- 
ing specifically provided that the Act of 1715 should 
be deemed unrepealed and in full force. The Court, 
in an opinion rendered by Judge Cushing, insisted 
on the complete division between the Judicial and 

1 In the trial of United States v. Smith, 3 Wheeler Criminal Cases, 100, Federal 
Cases No. 16342, in July, 1805, on an indictment for a military expedition in breach 
of the neutrality laws, the defendants asked for a subpoena to the Secretary of 
State in order to prove that the expedition had been undertaken with the encourage- 
ment and consent of President Jefferson, Judge Paterson refused the motion, say- 
ing: "The defence proceeds altogether upon the idea that the Executive may 
dispense with the laws at pleasure — a supposition as false in theory as it would 
be dangerous and destructive to the Constitution in practice. . . . The judi- 
ciary surely will never give its sanction to so gross a violation of these principles 
as would take place if the defence which now is attempted to be made were allowed 
to prevail." See especially opinion of Attorney-General Breckenridge to the Pres- 
ident, March 18, 1806, in 26th Cong., 2d Sess., House Doc. 123: "It would be a 
principle by which the honor and dignity of the Government might be wickedly 
assailed. To presume that those who administer this Government would stoop 
to vindicate their honor, or that of the Government, from the charges or calumny 
of any offender who may be arraigned before our tribunals, and who may attempt 
to implicate them in his guilt, is presuming on a state of personal, as well as Na- 
tional degradation, of which this Government will not furnish an example. It would 
be affording a weapon with which every conspicuous offender might attempt to 
wound the Administration ; as by only making the allegation, he would claim the 
right to call upon any of the high officers of the Government to justify his defence 
or to exculpate themselves. A practice so embarrassing and humiliating cannot 
possibly, I presume, be attempted to be introduced in any Court whatever. But 
admitting such testimony could be asked for, it would, if introduced, be wholly 
irrelevant ; for, the President having no power to arrest or dispense with the opera- 
tion of this Act, his assent, or even order, that it should be violated would not shield 
from its pains and penalties those offending against it." 



IMPEACHMENT AND TREASON 285 

Legislative branches of Government required by Ameri- 
can State and Federal Constitutions. For while Robert 
G. Harper and Luther Martin for the plaintiff were ar- 
guing that the State statute of 1799 was invalid, on 
the ground that "to declare what the law is or has been 
is a Judicial power; to declare what the law shall 
be is Legislative. One of the fundamental princi- 
ples of all our governments is, that the Legislative 
power shall be separated from the Judicial," the Court 
"stopped the counsel, observing that it was unnec- 
essary to argue the point." In its final decision, 
it held that, notwithstanding the Act of 1799 expressly 
provided that the Act of 1715 "shall be deemed, 
held and taken to be in full force," nevertheless, the 
Act of 1715 was in law repealed by the Act of 1789 ; 
and it further held that since, at the time of the passage 
of the Act of 1789, the debt was not barred, the debtor 
had no vested right which could be impaired by the 
repealing Act. The fact should be noted that this 
was the first case argued in the Court which involved 
the Impairment of Obligation of Contract Clause of 
the Constitution. 1 

Two other cases — Graves v. Boston Marine In- 
surance Co., and Head v. Providence Insurance Com- 
pany, 2 Cranch, 127, 419, were of interest as present- 
ing the first questions of corporation law decided since 

1 A case presenting a similar issue is reported in Ogden, Adrnr. of Cornell v. With- 
erspoon, Admr. of Nash, 2 Haywood (N. C), 277, as decided at the Circuit 
Court for the District of North Carolina in Dec, 1802. At the end of his report, 
Hayward added the following note: "Note. This cause was removed to the Su- 
preme Court by writ of error where it was also decided that the Act of 1715 had 
been repealed by the Act of 1789." This note is erroneous, as a'search of the records 
and files of the office of the Clerk of the Supreme Court of the United States shows 
that no such case was entered in that Court on writ of error. The case is partic- 
ularly interesting because of Chief Justice Marshall's opinion holding the State 
statute of 1799 invalid on two grounds — first as conflicting with the State 
Constitution denying to the Legislature strictly Judicial powers; second as 
conflicting with the Federal Constitution and impairing the obligation of 
contract. 



286 THE SUPREME COURT 

1790, * the Court holding that if its charter prescribed 
a mode of contracting a corporation must observe 
that mode and could not contract otherwise. The 
cases were argued by Luther Martin of Maryland, 
David Hunter of Rhode Island, Richard Stockton 
of New Jersey, Robert G. Harper and Philip B. Key 
of Maryland, John T. Mason of Virginia, and John 
Quincy Adams of Massachusetts. The latter, a Sena- 
tor, was admitted to practice at this Term, and in 
his diary noted that: "Feb. 8. Attended at the Su- 
preme Court and in the Senate. Examining author- 
ities with too much assiduity. Feb. 9. Supreme 
Court and Senate. Feb. 13. This attendance in 
the Senate and the Supreme Court at once almost 
overpowers me. I cannot stand it long. " Of the 
argument, he wrote: "On the whole, I have never 
witnessed a collection of such powerful legal oratory 
as at this session of the Supreme Court." 2 

At the end of the 1804 Term, Judge Alfred Moore 
resigned, owing to ill health ; 3 and to President Jef- 
ferson there now fell the opportunity of appoint- 
ing the first Republican on the Court. As two Cir- 
cuits (the Second and the Sixth) were unrepresented 
by any Judge, Jefferson felt that his choice should 
be made either from New York, or from Georgia or 

1 See Bank of North America v. Vardon (1790), 2 Dallas. 78. 

2 J. Q. Adams, I, Feb. 7, 8, 9, 18, 15, lfi, 17, 22, 1801. See also Writing 9 of John 
Quincy Adams (1914), III, letter of Adams to Peter Chaidoo Hrooks, Jan. 21, 
1804, in which he wrote as to another case Ugued by him at the 1S01 Term, Church 
v. Hubbart, 2 Cranch, 187, that he had determined to engage a^ associate counsel, 
Luther Martin, "a gentleman whose professional eminence aa well as his particu- 
lar familiarity with causes of a commercial nature are universally recognized. . . . 
You are aware the customary fees of counsel here are higher than in Host on. Upon 
inquiry here what would be proper, I have determined to give Mr. Martin 100 
dollars on employing him. I presume he will expect a further compensation should 
the cause come to trial." 

* Planter Papers MSS, letter of W. Plumer to Dr. John Parton, Feb. 14, 1804, 
letter of J. Smith, Feb. 28, 1804, in which Plumer quaintly said: "Judge Moore, 
from a full conviction of a speedy removal by writ of habeas corpus returnable to 
Heaven's Chancery, has resigned his office." 



IMPEACHMENT AND TREASON 287 

South Carolina. "The importance of filling this va- 
cancy with a Republican and a man of sufficient tal- 
ents to be useful, is obvious, but the task is difficult," 
wrote Albert Gallatin, his Secretary of the Treasury, 
on whom he greatly relied. "If taken from the Sec- 
ond District, Brockholst Livingston is certainly first 
in point of talents. If taken from the Sixth District, 
unless you know some proper person, inquiry will 
be necessary. ... I am told that the practice is as 
loose in Georgia as in New England and that a real 
lawyer could not easily be found there. But South 
Carolina stands high in that respect, at least in repu- 
tation." ' Having finally determined to select a South 
Carolina lawyer, Jefferson had a choice of five prom- 
inent Republicans, John Julius Pringle, Thomas War- 
ties, William Johnson, Lewis C. Trezevant, and Theo- 
dore Gaillard, of whom he selected Johnson. At 
the time of his nomination, March 22, 1804, Johnson 
was the youngest man ever appointed on the Court, 
being but a little over thirty-two years of age; he 
had been a Judge of the State Supreme Court, and 
was described by a contemporary as "an excellent 
lawyer, prompt, eloquent, of irreproachable charac- 
ter, republican connections, and of good nerves in 
his political principles." 2 "Bold, independent, ec- 
centric and sometimes harsh", later wrote Charles J. 
Ingersoll who practiced long before the Court. 3 Even 

1 Writings of Albert Gallatin (1879), I, letter of Feb. 15, 1804. 

2 For memorandum sent to Jefferson setting forth the characteristics of all the 
candidates, see Office Seeking During Jefferson s Administration, by Gaillard Hunt, 
Amer. Hist. Rev. (1898), III. 

3 Historic Sketch of the Second War between the United States and Great Britain, 
2d Series (1852), I, 74, John Quincy Adams, who disliked Johnson, termed him in 
1820, "a man of considerable talents, and law knowledge, but a restless, turbu- 
lent, hot-headed politician caballing Judge." J. Q. Adams, March 17, 1820. 
Plumer Papers MSS, letter to Jeremiah Smith, March 23, 1804 ; see also letter 
to James Sheaf e, March 22, 1804, in which he terms Johnson "a man of fair moral 
character and not destitute of talents." 



288 THE SUPREME COURT 

that strong Federalist, Senator William Plumer of 
New Hampshire, was not unfavorable to the appoint- 
ment. "He is a zealous Democrat," he wrote, "but 
is said to be honest and capable. He has, without 
the aid of family, friends, or connections, by his tal- 
ents and persevering industry raised himself to office." 
It was after the close of this 1804 Term that William 
Cranch, the Chief Justice of the Circuit Court of 
the District of Columbia, issued the first volume of 
his Reports of the decisions in the Supreme Court. 
Up to that time, the opinions in the cases heard from 
1801 to 1804 had been practically unknown to the 
Bar and to the general public, with the exception of 
the Marbury Case, a summary of which had been widely 
published and commented upon in the newspapers. 
In his preface, Cranch stated the reasons for under- 
taking the task, the need of dispelling the uncertainty 
of the law and the lack of uniformity in the deci- 
sions, when cases are unreported and suffered to be 
forgotten; and, he said, "in a government which is 
emphatically styled a government of laws, the least 
possible range ought to be left to the discretion of 
the Judge. Whatever tends to render the laws cer- 
tain, equally tends to limit that discretion ; and per- 
haps nothing conduces more to that object than the 
publication of reports. Every case decided is a check 
upon the Judge. He cannot decide a similar case 
differently without strong reasons, which, for his 
own justification, he will wish to make public. The 
avenues of corruption are thus obstructed and the 
sources of litigation closed." The publication met with 
favorable comment, even from political opponents. 1 

1 A writer in the National Intelligencer, July 10, 1804, said : "Gentlemen" of the 
profession throughout the United States are much indebted to the industry and 
learning of Mr. Cranch in preparing for their use with much labour, a volume 
which contains the decisions of the most important Federal tribunal in the United 



IMPEACHMENT AND TREASON 289 

Shortly before the opening of the next Term in 1805, 
the House of Representatives finally voted to pre- 
sent articles of impeachment against Judge Chase, 
and the following were chosen as managers for the 
conduct of the trial : John Randolph of Virginia, 
Caesar A. Rodney of Delaware, Joseph H. Nicholson 
of Maryland, Peter Early of Georgia, John Boyle 
of Kentucky, George Washington Campbell of Ten- 
nessee and Christopher Clark of Virginia. 1 The trial 
opened in the Senate, January 2, 1805, but was con- 
tinued for a month. "I assuredly believe that the in- 
dependence of the Judiciary, which is the boast of 
the Constitution, hangs on this pivot," wrote Simeon 
Baldwin. 2 On Monday, February 4 (the date of the 
opening of the Term of the Court) Judge Chase appeared 
before the Senate accompanied by his counsel, five of 
the most eminent Federalist lawyers — Luther Martin, 
Robert Goodloe Harper and Philip Barton Key of 
Maryland, Joseph Hopkinson of Pennsylvania and 
Charles Lee of Virginia. 3 Nearly a month was occupied 

States. We are happy to state that these reports have been compiled with the 
utmost attention to accuracy and that the learned reporter will continue them 
under proper encouragement. . . . We feel sanguine then that this specimen 
may operate as an incentive to legal gentlemen in different parts of the Union 
towards lending their aid to similar publications. By the proper exertion in this 
way, we may expect to see a code of Common Law arising out of our own Consti- 
tutions, laws, customs and state of society, independent of that servile recourse 
to the decision of foreign Judicatures to which, since our revolution, we have been 
too much accustomed." 

1 It was proposed at first to impeach also District Judge Richard Peters who sat 
with Chase in the Fries Case, but it was finally decided to drop the charge against 
him. Peters wrote to Timothy Pickering, Jan. 11, 1804, that he was not alarmed 
and was entirely clear in his conscience, and he added : "I have so little an opinion 
of my own importance that I think they are charging a cannon to shoot a mos- 
quito." Pickering Papers MSS. Jeremiah Smith wrote to William Plumer, Jan. 
7, 1805, a long and witty letter as to Chase, which closed as follows : "To conclude 
with Prayer suitable for a Judge — from lightning and tempest, from plague, pesti- 
lence and famine, from battle (Mr. Jefferson will join me in this) and murder (and 
Burr in this) and from impeachment, Good Lord deliver us." Plumer Papers 
MSS. 

2 Life and Letters of Simeon Baldwin (1919), by Simeon E. Baldwin, letter of 
Jan. 5, 1805. 

3 An extremely interesting letter was written by James A. Bayard to Robert 

VOL. I — 10 



290 THE SUPREME COURT 

in the presentation of the evidence and the arguments, 
and the Senate did little other business at this session. 1 
Long before the end of the trial, predictions were 
freely made, even by Republicans, that owing to the 
inherent weakness of the case and to the great superiority 
of his counsel, the Judge would probably be acquitted. 2 

G. Harper, Jan. 30, 1804, advising strongly that Chase employ no counsel but 
conduct his own defense. James A. Bayard Papers (1915). 

1 See full report of the case, published in Baltimore, Report of the Trial of the 
Hon. Samuel Chase (1805). Vivid descriptions of the details of the trial and 
large citation of authorities are to be found in William Plumcr Papers MSS, and 
in Marshall, III, Chap. 3. See also Decisive Battles of the Law (1907), by Frederick 
Trevor Hill ; History of the United States of America (1889-1891), by Henry Adams ; 
Life of William Plumer (1857), by William Plumer, Jr. ; Letters of Simeon Baldwin 
(1919), by Simeon E. Baldwin. For other vivid contemporary accounts not cited 
by Beveridge, see the following newspapers: Connecticut Courant, Jan. 2, 16, Feb. 
13, 23, 25, 27, 1805; Baltimore Federal Gazette, Jan. 5, Feb. 18, 23, March 4, 1805; 
New York Evening Post, Feb. 9, 14, 16, 26, 1805; Richmond inquirer, March 12, 
1805; Columbian Centinel, Jan. 17, Feb. 16, 1805; Aurora, Feb. 26, 27, March 1, 
4, 9; National Intelligencer, March 1, 1805; Independent Chronicle, Jan. 17, 1805. 
Interesting glimpses of the trial are afforded in letters of John Breckenridge to 
his wife. Breckenridge Papers MSS (not cited by Beveridge). Writing, Jan. 30, 
1805, he said : "There is nothing interesting here in or out of Congress. The city 
is said to be more insipid and dull than at former sessions. The trial of Judge Chase 
which is expected to come on the 4th of next month will collect a great crowd hero. 
Much preparation is making for it. An additional gallery is erected in the Senate 
Chamber for the ladies, and lodgings engaged in all the boarding houses which 
are not full. Should the trial come on, we shall do little else this session." On 
Feb. 7, he wrote : "Today we met in the Senate Chamber with a view of commenc- 
ing the trial of Chase. But after waiting some time and calling over the list of 
witnesses (40 or 50 in number) the Managers found tlicy wen- not ready and the 
Court adjourned till tomorrow. I expect we shall then go on with it. A very 
great crowd attended, with more apparent anxiety in the faces of all than I ever 
saw exhibited. When the Senate are not in the Senate Chamber, they meet in 
a Committee Room which has been fixed up for them, and carry on the Legisla- 
tive business. We sit in that room until 12 o'clock, and then adjourn to the Sen- 
ate Chamber and open court." 

2 "Some of the democrats themselves, say the Judge will be acquitted," wrote 
the correspondent of the New York Evening Post, Feb. 26, 1805, "expressing a wish 
at the same time that 'the damned thing had never been meddled with.'" " The 
general sentiment here even among political adversaries of the Judge," wrote 
another, to the Baltimore Federal Gazette, Feb. 18, 1805, "is that he will be honor- 
ably acquitted. The candor and unsuspecting frankness of his character may 
have sometimes led him into indiscreet expressions and actions, but every impu- 
tation of corrupt intention is now entirely removed." "In the opinions of better 
judges than I am," wrote Pickering to Peters, "after a full examination of the wit- 
nesses, nothing in Judge Chase's judicial acts . . . has appeared to be a departure 
from strictly legal principles and rules of law. Bradley of Vermont (who tho' 
void of principle, sometimes dashes a correct sentiment) after hearing the greater 
part of the evidence, exclaimed, 'I swear if they go on much farther, they will 



IMPEACHMENT AND TREASON 291 

On March 1, 1805, when the vote was taken, Chase 
was found not guilty on five of the articles, and guilty 
(though by less than the majority required by the 
Constitution) on three. Of the thirty-four Senators 
at this time twenty-five were Republicans and nine Fed- 
eralists. It required twenty- three to convict and nine- 
teen was the highest vote obtained against Chase. 

The result was hailed with jubilation by the Fed- 
eralists. "It is cause for gratification to our country 
that on this great occasion, when all passions that could 
be enlisted into the partisan service were arrayed against 
a meritorious officer, a sense of decorum, dignity and 
justice has prevailed to influence the decision of our 
highest Court of Judicature and to repel the oppression," 
said one paper ; and another, speaking of the " triumph 
of reason and justice over the spirit of party ", hoped 
that it would have a tendency "to allay the spirit of in- 
tolerance, prejudice and party animosity which has so 
long disgraced our country ", and it praised those Sena- 
tors who had acquitted "a political opponent whom 
party spirit had doomed to destruction. " " Let the 
mutual disappointment of these opinions formed by 
prejudice," it said, 'give rise to a more tolerant and 
liberal spirit." 1 

The Republicans, on the other hand, received the 
acquittal of Chase with much bitterness of feeling. 2 
"The Judge has not been found innocent," said the 

prove Judge Chase an angel.' " Peters Papers MSS, letter of Pickering to Peters, 
Feb. 24, 1805. 

1 See Columbian Centinel, March 16, 1805 ; Charleston Courier, March 16, 19, 
1805. 

2 Jefferson, it seems, had been so confident of Chase's conviction that he had even 
picked out Chase's successor on the Bench. King, V, letter of Pickering to King, 
March 2, 1805 : "In your later letter, I think you asked me why the nomination of 
an Attorney General was delayed. I could not then tell ; now it seems apparent. 
Yesterday, you will find by my letter of that date, Judge Chase was acquitted, and 
at the moment I began this letter, Robert Smith was nominated to be Attorney 
General. Had Chase been convicted on the articles of impeachment, doubtless 
Smith was to have been placed on the Bench." 



292 THE SUPREME COURT 

Richmond Enquirer, he has simply escaped "through the 
mercy of our Constitution. To men who estimate 
truth by probability, Mr. Chase must appear virtually 
condemned ; to impartial persons who resort to a much 
higher authority — to the merits of the prosecution 
itself — he must stand condemned, if not of the highest 
crimes and misdemeanors, at least of judicial tyranny of 
no ordinary standard." It said that the acquittal pre- 
sented "a fruitful source of meditation and alarm" to 
those who believed in "a restricted but not a dependent 
Judiciary. If a man like Judge Chase can escape the 
punishment of his misdemeanors, where is the Judge 
who can be made to expiate his offences, in a Court of 
Impeachment ; or what are the offences, what the judi- 
cial despotism, which can be conceived mighty enough to 
draw upon him the vengeance of an indignant nation? " f 
And Henry St. George Tucker of Virginia wrote to 
Joseph H. Nicholson : "I regard the acquittal as a foul 
disgrace upon our country. Is it not absurd, ridiculous 
that there should be any class of men in society in any 
office, that should be treated so much like gods, placed 
so far above the reach of censure and almost dignified 
with papal infallibility? It really seems as if the People 
were afraid to touch this golden calf they have formed — 
this talisman, the fancied charm which is to preserve 
us thro every danger. ... I only wish 'twas my lot 
to be a Judge. As for my ignorance, that would be no 
cause of forfeiture, and I might play the villain when I 
pleased and yet be thought a perfect Daniel. Heaven 
forbid we should see another impeachment. It already, 
even in this country, deserves the title of political Im- 
pyricism." 2 The profound effect produced upon the 

1 Richmond Enquirer, March 12, 30, 1805. 

2 Joseph H. Nicholson Papers MSS, letter of March 17, 1805; ibid., letter of 
John Randolph to Nicholson, March 9, 1805, written from his home in Virginia: 
"Yazoo and Chase are making a devilish noise here." 



IMPEACHMENT AND TREASON 293 

course of American legal history by the failure of the 
Chase impeachment can hardly be overestimated; 
for it is an undoubted fact that, had the effort been 
successful, it was the intention of the Republicans to 
institute impeachment proceedings against all the 
Judges of the Court. " Now we have caught the whale, 
let us have an eye to the shoal," said Jefferson, when he 
first learned of Chase's impeachment. 1 But the mere 
fact of an intention to impeach all the Judges was not 
the most serious feature of the situation. Its gravest 
aspect lay in the theory which the Republican leaders 
in the House had adopted, that impeachment was not a 
criminal proceeding but only a method of removal, the 
ground for which need not be a crime or misdemeanor 
as those terms were commonly understood. They 
contended that impeachment must be considered a means 
of keeping the Courts in reasonable harmony with the will 
of the Nation, as expressed through Congress and the 
Executive, and that a judicial decision declaring an Act 
of Congress unconstitutional would support an impeach- 
ment and the removal of a Judge, who thus constituted 
himself an instrument of opposition to the course of gov- 
ernment. This theory, it will be seen, was the early/ 
nineteenth century form of the later twentieth century 
cry for recall of Judges and of judicial decisions. It is 
singular that the doctrine then advocated in 1805 by 
the most extreme of Democratic State-Rights leaders 
should have been reechoed in 1912 by the most Nation- 
alistic of Republican Ex-Presidents. Fortunately for 
the country, the Senate declined to adopt this view of 
the Constitution with relation to impeachment, though 
it was hotly urged by William B. Giles of Virginia, who 

1 Baltimore Federal Gazette, March 9. 1805. The Independent Chronicle of April 
16, 1804, had said : "If rigid justice were laid to the line and just judgment to the 
plummet, Pickering and Chase would not be the only Federal Judges that might 
be impeached." 



294 THE SUPREME COURT 

charged that the Judges were impeachable for their 
"assumption of power in issuing their process to the 
office of Secretary of State directing the Executive 
how a law of the United States should be executed, 
and for the right which the Courts have assumed to 
themselves of reviewing and passing upon the acts 
of the legislature." 1 Of this plan, John Quincy Adams 
gave a striking account in his diary : 2 

Giles labored with excessive earnestness to convince 
Smith of certain principles, upon which not only Mr. Chase, 
but all the other Judges of the Supreme Court, excepting 
the one last appointed, must be impeached and removed 
. . . and if the Judges of the Supreme Court should dare, as 
they had done, to declare an Act of Congress unconstitu- 
tional, or to send a mandamus to the Secretary of State, 
as they had done, it was the undoubted right of the House 
of Representatives to impeach them, and of the Senate to 
remove them, for giving such opinions, however honest or 
sincere they may have been in entertaining them. Im- 
peachment was not a criminal prosecution. . . . And a 
removal by impeachment was nothing more than a decla- 
ration by Congress to this effect: you hold dangerous 
opinions, and if you are suffered to carry them into 
effect, you will work the destruction of the Union. We 
want your offices for the purpose of giving them to 
men who will fill them better. 

and writing to his father, March 8, 1805, Adams said: 

The attack by impeachment upon the Judicial Depart- 
ment of our National Government began two years ago, 
and has been conducted with great address as well as with 
persevering violence. . . . The assault upon Judge Chase 
. . . was unquestionably intended to pave the way for 

1 Baltimore Federal Gazette, Jan. 8, 1805, letter from Washington correspondent. 
Dec. 20, 1801. William Plumer wrote to T. \\ . Thompson, 1 >ec. 23, 1804, as to 
the Giles speech : " This is the language of the dominant party and shows not only 
how feeble a barrier paper constitutions ;ire against the encroachments of power, 
but that the boasted independency of our Judiciary exists but an idea." Plumer 
Papers MSS. 

2 J. Q. Adams, I, entry of Dec. 21, 1804; J. Q. Adams Writings, III, letters of 
March 8, 14, 1805. 



IMPEACHMENT AND TREASON 295 

another prosecution, which would have swept the Supreme 
Judicial Bench clean at a stroke. . . . When it was seen 
that on the very day of his (District Judge Pickering's) 
conviction, the impeachment of Mr. Chase was voted, and 
when the application of those absurd doctrines upon which 
he has been construed into a criminal were instantly ex- 
tended to a Judge of the Supreme Court, with undisguised 
intimations that it would soon be spread over the whole 
of that Bench, some of those whose weakness had yielded 
to the torrent of popular prejudice in the first instance, 
had the integrity to reflect, rallied all their energy to assist 
them, and took a stand which has arrested for a time that 
factious impetuosity that threatens to bury all our Na- 
tional institutions in one common ruin. 

Impeachment as a medium for attack upon the Fed- 
eral Judges appearing to be a failure and, as Jefferson 
expressed it, "a bungling way of removing Judges", 
"a farce which will not be tried again", " an impracti- 
cable thing — a mere scarecrow", 1 another line of attack 
upon the Judiciary was now determined upon ; and on 
the very day of Chase's acquittal, John Randolph intro- 
duced in the House of Representatives a resolution to 
amend the Constitution so as to provide that: ;s The 
Judges of the Supreme Court and all other Courts of 
the United States shall be removed from office by 
the President on joint address of both Houses of Con- 
gress requesting the same." Simultaneously, Nichol- 
son introduced a Constitutional Amendment for the 
recall of Senators. Randolph supported his resolution 
by a violent speech full of heated invective against the 
Senate, in which he spoke of the "mockery of a trial" 
and the "acquitted felon." The Federalist papers 
were naturally highly indignant at this new move. 2 

1 Life of William Plumer (1857), by W. Plumer, Jr. ; Jefferson, XII, letter of 
Spencer Roane, Sept. 6, 1819. 

2 See Charleston Courier, March 18, 23, 1805; Baltimore Federal Gazette, March 9, 
1805; also ibid., March 12, 1805, quoting the Republican paper, the New York 
Morning Chronicle; Connecticut CouranU March 13, 1805. See also Columbian 



296 THE SUPREME COURT 

" It makes every American blush for his country when 
so dignified and important an assembly as the House of 
Representatives," said a South Carolina paper, " is made 
the vehicle for envenomed spleen and mortified pride 
to vent themselves . . . and to hear the most violent 
and indecent invectives against a coordinate branch of 
the government.' ' This proposal to subject the Fed- 
eral Judges to removal by the President on a majority 
vote of Congress, met, however, with little approval ; 
and even strong Republican papers stated their opposi- 
tion to such an impairment of the independence of the 
Judiciary. " Tho' we are not friendly to the independ- 
ence of judicial character which places them out of 
the reach of all human power, however great offences 
may be, we would nevertheless protest against subject- 
ing the Judges of our tribunals to the guidance and 
control of every party, which may from time to time 
gain the ascendency in our National councils," said a 
Baltimore paper. "The plain objects of the resolu- 
tion," said a Connecticut paper, " are to drive Judge 
Chase from the Bench, notwithstanding his acquittal 
by the Court of Impeachment ; to place the Judiciary 
entirely at the footstool of Congress." The Washing- 
ton Federalist said, under the headline "Blossoms of 
Democracy": "We do not think t hat the people of the 
United States have become so regardless of their rights, 
so totally indifferent to the preservation of their Consti- 
tution, as to permit its utter destruction. They cannot 
view these daring attempts without being alarmed ; and 
they will not, we trust, suffer the spirit of party so far 
to blind them as to draw them into an acquiescence, and 
deceive them into an adoption of measures so utterly 
subversive of liberty and independence. " And it again 

Centinel, March 16, 1805, quoting the New York Political Register, as to the "inde- 
cent invective" and "hysterical whining of the malignant monkey who led the pros- 
ecution." 



IMPEACHMENT AND TREASON 297 

said : "Subject the Senate and the Judiciary to the House 
of Representatives, and in vain may unprotected inno- 
cence look for refuge from the oppression of power and 
influence. We shall soon become the ready instru- 
ments and willing slaves of a single despot. ... If 
such alterations should ever be made, we may bid 
adieu to our Constitution and with it to our Union, lib- 
erty, and independence." * 

Meanwhile, the pendency of the impeachment trial 
had not prevented Judge Chase from assuming his seat 
upon the Bench at this 1805 Term, though he was 
sharply criticized by Republican papers for this action. 2 
Nor had the threats of impeachment in any way intim- 
idated the other members of the Court or deflected 
them from their previous course in upholding the right 
of the Judiciary to determine the validity of Acts of 
Congress ; for at this very Term, the Court in United 
States v. Fisher, 2 Cranch, 358, considered the constitu- 
tionality of a Federal statute giving priority to the 
United States in all cases of bankrupt debtors ; 3 and 

1 See Baltimore Federal Gazette, March 8, 12, 1805. Judge Chase wrote to Rufus 
King, March 13, 1805, as to Randolph's measures: "I can conceive no two meas- 
ures more radically destructive of our Constitution." Gouverneur Morris wrote 
to Uriah Tracy regarding the Randolph Amendment, Jan. 5, 1806, Diary and 
Letters of Gouverneur Morris (1898) : "Since the prostration of the Judiciary, my 
anxiety about the Constitution is not so great as in former times. That mortal 
stab was but the beginning of a system — the more dangerous because it is not 
the result of a conspiracy among ambitious men, for that might be detected, exposed 
and thereby frustrated. But the mischief lies deeper, and the agents are actuated 
more by instinct than reflection. There is a moral tendency, and in some cases 
a physical disposition among the people of this country to overturn the Govern- 
ment." 

2 A Washington correspondent of the Connecticut Courant, Feb. 20, 1805, writing 
Feb. 6, said: "All the Judges of the Supreme Court were in their seats today. 
Judge Chase appears not to be anyway affected." The Richmond Enquirer, in an 
editorial, Feb. 12, 1805, severely criticized Chase for so sitting and stated that 
"by such conduct, Mr. Chase manifested little respect to the tribunal before whom 
he is impeached, to the grand inquest of the Nation, or to the sentiment of the 
American people." 

3 Beveridge in his Marshall, III, 162, describes this case as having been de- 
cided at the February, 1804, Term, but this is a mistake. See 2 Cranch, 370, 
note. 



298 THE SUPREME COURT 

the general recognition of its power was interestingly 
shown by the fact that one of the counsel in the case, 
Alexander J. Dallas, the most violent Republican of 
all lawyers at the Bar, and Jefferson's own United States 
Attorney for Pennsylvania, expressly argued that : 
"The Constitution is the supreme law of the land and 
not only this Court, but every Court in the Union is 
bound to decide the question of constitutionality. 
They are bound to decide an act to be unconstitutional, 
if the case is clear of doubt ; but not on the ground of 
inconvenience, inexpediency or impolicy. It must be 
a case in which the act and the Constitution arc 
in plain conflict with each other." Chief Justice Mar- 
shall, in giving the decision of the Court, upheld 
the constitutionality of the statute and outlined for 
the first time the construction o{ the implied powers 
of the United States Government, which he was to 
develop more fully, fourteen years later, in McCul- 
loch v. Maryland; and with this opinion at this 
early date, in 1805, the clear line was drawn between 
the strict and the broad constructions of the Constitu- 
tion. "It would produce endless difficulties," he said, 
"if the opinion should be maintained thai no law was 
authorized which was not indispensably necessary to 
give effect to a specified power. . . . Congress must 
possess the choice of means, and must be empowered to 
use any means which arc in fact conducive to the exer- 
cise of a power granted by the Constitution." 

While few cases of any importance were decided at 
the next Term in 1806, the* session of the Court was 
marked by another attack made upon it in Congress by 
John Randolph, who reintroduced his Constitutional 
Amendment for removal of the Judges, supporting 
his measure by a speech in which he referred to Judge 
Chase as "the great culprit, whose judicial crimes or 



IMPEACHMENT AND TREASON 299 

incapacity have called for legislative punishment under 
the Constitution. ... I consider the decision of the 
last session as having established the principle — that 
an officer of the United States may act in as corrupt 
a manner as he pleases, without there being any 
constitutional provision to call him to an account." 
Another member of the House said : "That part of the 
Constitution which relates to the impeachment is a 
nullity. ... I do religiously believe that we cannot 
convict any man on an impeachment." 1 The measure 
again failed of adoption. 

Before the opening of the next Term, Judge Paterson 
died on September 9, 180(>, after a service of thirteen 
years; and President Jefferson was given a second op- 
portunity to make an appointment on the Court. His 
choice fell upon 1 1 (Miry Brockholst Livingston of New 
York, whom he appointed on November 10, 1806. 2 
Livingston, a cousin <>f Edward Livingston and of 
Chancellor Robert R. Livingston, was forty-nine years 
of age, and had been for four years a Judge of the New 
York Supreme Court. A few months later, Jefferson 
was given opportunity to make still another appoint- 
ment in order to fill the additional Associate Judgeship 
which Congress, impelled by the increase of business 
and population in the Western Districts of Kentucky, 
Tennessee and Ohio, and by the necessity of bringing 
into the Court some lawyer versed in the peculiar land 
laws of those States, had created by the Act of Febru- 
ary 24, 1807. 3 In appointing this Judge for this new 
Seventh Circuit, President Jefferson adopted the novel 
plan of requesting each Member of Congress from these 

1 9th Cong., 1st Sess., Feb. 6, 24, 1806, 446, 499 et seq. 

2 Livingston's nomination was sent to the Senate, Dec. 13, and he was confirmed 
Dec. 17. 

3 As early as 1798, a bill passed the Senate providing for two additional Judges 
and Circuits in the West, but it failed in the House. See Harry Innes Papers MSS, 
letter of John Brown to Innes, June 8, 1798. 



300 THE SUPREME COURT 

States to communicate to him a nomination of his 
first and second choice. After considering the names of 
James Hughes and John Boyle of Kentucky, 1 the Con- 
gressional caucus finally united on George W. Campbell, 
then a Representative from Tennessee ; but since his 
nomination would have been in conflict with the con- 
stitutional provision against the appointment of any 
Member of Congress serving at the time the office was 
created, and since, moreover, Campbell was by no 
means a lawyer of the first rank (though he served with 
credit three years later as Secretary of the Treasury), 
the selection did not meet with Presidential approval. 
The action of the caucus was commented on by John 
Randolph in amusingly characteristic and caustic terms 
in a letter to Nicholson: "What think you of that 
Prince of Prigs and Puppies, G. W. C. for a Judge of the 
Supreme Court of the United States ! ! ! Risum Tcncas? 
You must know we have made a new Circuit consisting 
of the three Western States, will) an additional Associate 
Justice. A caucus (excuse the slang of politics) was 
held, as I am informed, by the delegations of those 
States for the purpose of recommending some character 
to the President. Boyle was talked of, but the interest 
of C. finally prevailed. This is 'Tom, Dick and Harry' 
with a vengeance. Bui, to cap the climax, an attempt 
was made by the honorable aspirant himself so to amend 
the bill as to get around the constitutional barrier to 
his appointment. Can you conceive a more miserable 
or shameless prevarication Mian the following? An 
office is created, but the Ac! made to take (fleet after 
the 3d of March ; therefore, say those unblushing quib- 

1 The statement by George Debrelle in Great American Lawyers, II. 2'J£, that 
Jefferson offered the place to John Boyle (who was serving in Congress as Repre- 
sentative from Kentucky) is probably inaccurate, although Boyle would have 
been eminently qualified for the place. He later served as Judge and Chief Jus- 
tice of the Kentucky Court of Appeals for seventeen years. 



IMPEACHMENT AND TREASON 301 

biers, not being created during the time for which we 
were elected, but coming into existence subsequently, we 
are eligible ! The proposed amendment was, however, 
rejected, altho strenuously pressed in the House as well 
as in the Committee." 1 Finally Jefferson decided upon 
the appointment of a Kentucky lawyer who had the 
singular distinction of being either first or second choice 
of every member of Congress from the States inter- 
ested — Thomas Todd. Todd, whose nomination was 
made on February 28, 1807, was forty-one years old, had 
been for five years a member of the Court of Appeals 
of Kentucky and was then Chief Justice. He served 
on the Supreme Court for twenty years, dying in 1826, 
worn out by the strain of sitting twice a year on Circuit 
in the three distant Western States and once a year at 
Washington. In an obituary notice, Judge Story wrote 
that it was to Todd's honor "that though bred in a 
different political school from that of the Chief Justice, 
he never failed to sustain those 4 great principles of con- 
stitutional law on which the security of the Union de- 
pends. He never gave up to party what he thought 
belonged to the country." 

During the year 1807, Republican hostility towards 
the Court and towards Marshall personally was brought 
to a climax by the decisions of the Chief Justice in two 
cases connected with the Aaron Burr conspiracy, Ex 
Parte Bollman, 4 Cranch, 75, in the Supreme Court, 
and United States v. Burr, in the Circuit Court in Vir- 
ginia. During the fall of 1806, the Administration 
had been much perturbed over the mysterious actions 
of Burr and certain of his associates. Jefferson be- 
lieved, and there was apparent evidence to support the 
belief, that Burr was planning an expedition to precipi- 

1 Joseph H. Nicholson Papers MSS, letter of Randolph to Nicholson on Feb. 17, 
1807; see partial quotation in John Randolph (1882), by Henry Adams. 



302 THE SUPREME COURT 

tate a war with Spain and to set up a separate govern- 
ment in the Western States, which already had griev- 
ances against that country because of the restrictions on 
commerce on the Mississippi imposed by Spain prior 
to the Louisiana purchase. "Our Catiline is at the 
head of an armed body," wrote Jefferson, "and his 
object is to seize New Orleans, from there attack Mexico, 
place himself on the throne of the Montezumas, add 
Louisiana to his empire and the Western States from the 
Alleghany, if he can. I do not believe be will attain the 
crown but neither am I certain the halter will get its 
due." ■ Whether Burr was planning treason or merely 
a violation of our neutrality laws has never been clearly 
established. Jefferson, however, was convinced that it 

was treason, and he took radical measures accordingly. 

In New Orleans, General Wilkinson, having declared 
martial law, arretted two alleged accomplices of Burr, 
Erich Bollman and Samuel Swartwout, and disregard- 
ing a writ of habeas OOipilS issued from t he Supreme 

Court of New Orleans Territory, sent the prisoners 

under military guard to Charleston. Prom that place 
they were sent on to Washington, in direct disobedience 

to another writ of habeas corpus issued by the United 
States District Court. At Washington, thqy were 

kept under military arrest, while steps were taken for 
their commitment 00 a charge of treason. Before act ual 
commitment and before an attempt OOllld be made 

to secure release from arrest by habeas corpus, Jeffer- 
son asked Congress, On January ^2:5, 1S07, to authorize 
him to suspend the privilege of the writ <>f habeas cor- 
pus. On the same day, the Senate sitting with closed 
doors actually passed a bill suspending the 4 writ for 
three months "in all cases of treason, misprision of irea- 
1 Work* of Tkomtu Itjfftmm (ed. l»y A. (i. Lipscomb, 1000 . \l\. letter to .l<>lm 

I^ngdon, Dec. M, 180G. Bee ftlsQ .Irfferton, X, lettCV to \ Rodney. Deft 

5. 1806. 



IMPEACHMENT AND TREASON 303 

son, or other high crime or misdemeanour endangering 
the peace, safety or neutrality of the United States, 
in case of arrest by virtue of warrant or authority from 
the President or Governor of any State or Territory, 
or person acting under direction or authority of the Pres- 
ident. " This very radical measure aroused loud outcry 
throughout the country, and after hot opposition by the 
Federalists, it was finally defeated in the House by a 
large majority. 1 While the bill was still pending, the 
Circuit Court of the District of Columbia ordered the 
commitment of Bollman and Swartwout for treason, al- 
thougfa Judge William ('ranch dissented in a noble opin- 
ion in which he voiced his sentiments as to t he policy 
which must control the Courts in times of grave politi- 
cal excitement. "In limes like these," he said, "when 
the public mind is agitated, when wars and rumors of 
wars, plots, conspiracies and treasons excite alarm, it 
is the duty of a Court to be particularly watchful 
lest the public feeling should reach the seat of justice, 
and thereby precedents be established which may be- 
come the ready tools of faction in times more disastrous. 
. . . Dangerous precedents occur in dangerous times. 
It then becomes the duty of the Judiciary calmly to 
poise the scales of justice, unmoved by the armed 
power, undisturbed by the clamor of the multitude." 
And in a striking letter to his father, Judge Cranch 
(then only thirty-eight years old) voiced his views as 
to the obligation of the Judiciary to withstand Exec- 
utive power and popular clamor, as follows : 2 

x See Columbian Centinel, Feb. 4, 7, 11, 1807. Rufus King wrote: "How the 
Senate could have passed an act which would have permitted such deeds of tyranny 
is strange and incomprehensible. That body, with all its weakness, meanness, 
and subserviency, contains men devoted to the freedom of their country, and 
worthy of its highest confidence. The bill failed in the House of Representatives, 
who in checking this act of tyranny have atoned for much imbecility and folly 
that had before been exhibited." King, IV, 544, 547. 

2 Greenleaf and Law in the Federal City (1901), by Allen C. Clark, 53, letter of 
Cranch, Feb. 2, 1807. 



S04 THE SUPREME COURT 

Never in my life have I been more anxious. You will see 
by the newspapers that I have dared to differ from my broth- 
ers on the Bench. I have dared to Bet the law and the Con- 
stitution in opposition to the arm of Executive power, 
supported by the popular clamor. I have dared to attempt 
to maintain principle at the expense of popularity. ... In 
my own mind, I had no doubt whatever that the Constitu- 
tion did not justify a commitment upon such evidence; 
and although I felt that the public interest might be bene- 
fitted by committing those gentlemen for trial, yet I could 
not consent to sacrifice the most important constitutional 

provision in favor of individual liberty, to reasons ol State. 
I was not willing that the Executive department should 
transfer to US it > own proper responsibility. Never before 
has this country, since the Revolution, witnessed so gross 

a violation of personal liberty, as to seize a man without 
any warrant or lawful authority whatever, and Bend him 

two thousand miles by water for his trial out of the district 
or State in which the crime was Committed and then 

for the first time to apply for a warrant to aiTCSt him, 

grounded on written affidavits. ... So anxious was the 
President to have this prosecutiota commenced, <>r, to use 

his own language, to deliver them up to the civil authority, 

that he came to the Capitol on the day of their arrival, 
and with his own hand delivered to the District Attorney, 
Mr. Jones, the affidavits of General Wilkinson, and in- 
structed the Attorney to demand of the Court a warrant for 

the arrest. . . . When t hi- (jrcumst anee is considered and 

the at tempt made in the Legislature to suspend the privilege 

of habeas COipUS . . . when we reflect <>n the extraordinary 
exertions made by all under Presidential influence to c 
gerate Blirr'a conspiracy into I horrid rebellion, BO that the 
Administration may have the merit of quelling it without 
bloodshed- when they have ^<> far BUCCeeded as to excite 
the public mind almost to frenzy in many parts of the 
Country — you may form some idea of the anxiety which 
has attended my dissent from the majority of the Court. 

But having no doubt as to my duty, I have never once 

thought of shrinking from my responsibility. 1 

1 Tlir foci that Judge 4 'ranch was a st.mtu h Pederaliet, appointed bj Ad 

l bii language, but bk diaeenl ami cUurI\ ju>;iii.ii>l<\ :i . a matt* r i 



IMPEACHMENT AND TREASON 305 

There were even Republicans who were disturbed at the 
extreme measures taken by the Administration ; and 
James Hughes of Kentucky wrote : " The agitation occa- 
sioned by Burr's conspiracy and the sending round these 
men for trial has produced some very tory-fied doc- 
trines from well meaning men — such as that the Presi- 
dent's message, or proclamation, is evidence of the actual 
existence of a rebellion. It not infrequently happens 
that, transported by the indignation arising from an 
attempt to destroy a free Government, its friends, by the 

measures they lake to defend and support it, sap those 
principles on which it is founded. " ' Bollman and 
Swartwoul al once applied to the Supreme Court for 

a writ of habeas corpus, and on February 10, diaries 

Lee of Virginia argued the motion briefly, evidently 

Supposing there would be no difficulty as to the issue 
of the writ. At t<>rney-( ieneral Rodney said that "it 
was not his wish in this Stage of the business to make 
any remarks. If it should be the determination of 
the Court to issue a writ of habeas corpus, he would 
cheerfully submit to it. ,, ' 2 On February 11, Robert (i. 
Harper of Maryland, one of the leading Federalists of 
the day, stated that he and Luther Martin wished to be 

1 Harry liuus Papers MSS, letter of Hughes to Innes, Feb. 8, 1807. It had 
been generally expected that Hughes would receive the new appointment to the 
Court; see ibid., letter of B. Thurston, Feb. 18, 1807. John Randolph wrote to 
Nicholson, Feb. 5, 1807: "It strikes me that whenever government conies into 
Court demanding justice to be done upon an individual, it should come with clean 
hands; at least, that they should be unstained with oppression, committed upon 
the person of him whom they have dragged to the bar of criminal justice. This 
business of seizing the person of the citizen with the strong hand of military power, 
while the other twin member of the civil arm (all the while no doubt unconscious 
of the outrage) is ready to receive him, is a circumstance that I do not understand 
and which strikes me with consternation." Joseph H. Nicholson Papers MSS. 
John Quincy Adams, writing January 30, said that the case "excites universal 
curiosity, so that we are scarcely able here (in the Senate) to form a quorum to do 
business, and the House of Representatives actually adjourned for want of a quo- 
rum." 

2 This is quoted from the National Intelligencer, Feb. 11, 1807, which in its va- 
rious issues contains a fuller report and more details of the argument of the case 
than appear in 4 Cranch, 75. 



306 THE SUPREME COURT 

heard for Bollruan, "induced to make this request from 
understanding that the Court had some difficulty on 
certain points which had not been so fully examined 
by Mr. Lee as their importance merited." Accordingly, 
Harper argued at length, on February 12, the ques- 
tion whether the Supreme Court had any power under 
the Constitution to issue a writ of habeas corpus, and be 
alluded to the political prosecution as follow- ■ " Let it 
be once established by the authority of this Court, that 
a commitment on record by such a tribunal is to stop 
the course of the writ of habeas corpus, is to shut the 
mouth of the Supreme Court, and see how ready, how 
terrible an engine of oppression is placed in the hand-- of 
a dominant party, flushed with victory, and irritated by 
a recent conflict : or struggling to keep down an oppo 
ing party which it hates and fears. Does the history of 
the human passions warrant the conclusion, or the ex- 
pectation, that such an engine will not be used?" 
Meanwhile, President Jefferson was closely watching the 
proceedings, anxious to see whether Marshall would 
tin put obstacles in the path of the Executive. Two 
days later, the Chief Justice announced the opinion of 
four Judges, a majority of the ( !ourt, upholding its power 
to issue the writ. Judge Johnson who dissented (Chase 
agreeing with him and Cushing being absent from ill- 
nes>) referred caustically to Harper's "popular obser- 
vations on the necessity of protecting the citizen from 

Executive oppression", and to his "animated addn 

calculated to enlist the passions or prejudices of an 

audience." On February IS, Bollman and Swart wont 
were actually brought in person before the l>;ir of the 
Court, and arguments lasting three days were made by 
Francis Scott Key, Harper and Martin againsl the 
Attorney-General and the Distrid Attorney Walter 
Jones, on the question whether there was evidence 



IMPEACHMENT AND TREASON 307 

of acts of treason sufficient to warrant the commit- 
ment. The day after the close of the arguments, the 
Court stated that it "had not yet been able to make 
up a decisive opinion ; in the meantime, as the situation 
of the prisoners might be irksome to them, if they could 
find bail, they might be bailed until tomorrow." 
Alarmed a I wlial they considered signs of Marshall's 
intention to release the prisoners, the Jeffersonians in 
Congress now introduced a resolution to curb the power 
of the Court t<> issue habeas corpus. To this move, 
however, the Federalists rightlj objected that Congress 
had no authority to suspend or divest the jurisdiction 
of the Supreme Court, conferred by the Constitution; 
and the plan was defeated. 1 Two days later, on Febru- 
ary 21, Chief Justice Marshall rendered (he opinion of 

the majority of the Court, elaborately considering the 
definition of the crime of treason, and holding that 
there was not sufficient evidence of a levying of war to 
justify the commit incut of the prisoners for treason, and 
the unanimous opinion of the Court that I lie crime, if 
any, not being committed in the District could not be 
tried there; on several other questions which had 
arisen the Court (consisting of four Judges — Living- 
ston, Chase and Cushing being absent) were evenly 
divided. 2 By President Jefferson, the decision was 
viewed as another deliberate attack by the Court 
upon his Executive authority. The Federalists, on 
the other hand, regarded it as a noble example of 
the judicial safeguards to individual liberty. "It 

1 National Intelligencer, Feb. 16, 17, 20, 1807; 9th Cong., 2d Sess., Feb. 17, 19, 
1807. 

2 National Intelligencer, Feb. 23, 1807; Columbian Ccntinel, March 4, 1807. A 
division of the Court had been interestingly predicted by a Washington corre- 
spondent of the New York Everting Post, Feb. 20, the day before the decision : " All 
the Judges are clear that there is no ground for a charge of treason. One is for 
committing them for a smaller offence, two for discharging them. One is doubtful. 
This I am assured of from sources which preclude any doubt of the fact." See 
ibid., Feb. 26, 1807. 



308 THE SUPREME COURT 

happened, from a singular and unforeseen coincidence 
of strange circumstances, that I should be the first to 
resist the hand of arbitrary power, and to stem the 
torrent, which has at length yielded and is now turning 
the other way," wrote Judge William C ranch on the 
day of the decision. "Although I have not for a 
moment doubted the correctness of my opinion, yet 
it i- a source of great satisfaction to find it confirmed 
by the highest judicial tribunal in the Nation. I 
congratulate my country upon this triumph ^^ reason 
and law over popular passion and injustice — upon 
the final triumph of civil over the military authority, 
and of the practical principles of substantial personal 
liberty over the theoretical doctrine of philosophic 
civil liberty." So exasperated were the adherents of 
Jefferson over the release of the prisoners accomplished 
by this decision that suggestions were made of impeach- 
ment of the Judges, and even of Amendments to the 
Constitution depriving the Court of all jurisdiction in 
criminal cases : and these threats took concrete form, 
the next year, when on motion of William B. (dies 
of Virginia, a bill was reported in the Senate to abolish 
the power of the Court to issue writs of habeas corpus. 
Meanwhile, Jefferson's suspicions of the Chief Justice 
and his apprehensions as to the effect of his construction 
of the law of treason in the Swartwoui Can were 
heightened and confirmed by Marshall's course in tlie 
trial of the main offender, Burr, which took place after 
the Court adjourned. On March SO, 1 ^<>? . when Burr 
was broughl before the Chief Justice sitting in the 
Circuit Court in Richmond, after hearing the evidence 
produced, Marshall declined to hold Burr for treason 
but bound him over to the grand jury for a violation 

of the neutrality law. "The Federalists make Burr's 

cause their own, and exert their whole influence to 



IMPEACHMENT AND TREASON 309 

shield him from punishment/' wrote Jefferson. "And 
it is unfortunate that Federalism is still pre-dominant 
in our Judiciary department, which is consequently 
in opposition to the Legislative and Executive branches 
and is able to baffle their measures often." 1 On 
June 24, the grand jury, of which John Randolph was 
foreman, found indictments against Burr both for 
treason and misdemeanour. 9 The trial began on Aug- 
ust 17, and ended with Burr's acquittal on September 8, 
It was remarkable for the asperity with which it was 
conducted on both sides, and for the virulence with 
which the Republican newspapers assailed Burr, Ids 
counsel and the Court, as well as for the equally savage 
onslaughts of the federalist organs upon "the san- 
guinary doctrines of the Jeffersonian legal myrmidons", 
"the persecution of Bun-", "the improper and flagi- 
tious conduct of the Government ", " the Democratic^ 
prints in their rage for the blood of Burr . . . crying 
'down the Court.'" The famous ruling of Chief 
Justice Marshal] as to the sufficiency of the evidence 
to constitute the crime of treason— a ruling which 
clearly defined the legal elements of the crime and the 
necessity of proving an overt act of levying war by 
Burr in Virginia — was greeted with a burst of fury by 
the Republican press. "Now may the ensign of 
rebellion be once more unfurled, and all may hurry 
to its standard, fearless of punishment," said the 
Neio York Daily Advertiser. "Treason may again 
shadow with dismal pomp the Western States, and 
ambitious men may find fit opportunity for the 

1 Jefferson, X, letter to James Bowdoin, April 2, 1807. 

2 For description of the details of the trial, see Marshall, III, Chapters 6-9 ; Wirt, 
II; Trial of Aaron Burr, by James A. Cabell, New York Stale Bar Ass., XXIII; 
Decisive Battles of the Law (1907), by Frederick Trevor Hill. 

3 See Columbian Centinel, May 9, 1807; United States Gazette, quoted in the 
Aurora, June 12, 1807, and in the New York Evening Post, Aug. 21, 1807. See 
Aurora, June 11, 16, 18, 23, 25, 1807 ; Independent Chronicle, June 29, Sept. 7, 1807. 



310 THE SUPREME COURT 

advancement of their own designs. Justice, whose 
hand should be swift and unerring, has become vapid 
and inert. ... A retrospect of the conduct of Judge 
Marshall in this case conveys no pleasing reflections 
and affords sufficient grounds for animadversion/' 
And the Aurora, terming the decision "extraordinary ", 
said that "after the countenance which treason and 
traitors have experienced in Courts instituted for the 
public safety and for the ends of justice only, the people 
now have to consider whether the existing Judiciary 
system and the English common law are exactly cal- 
culated for a free nation and a virtuous people." And 
for over six months, the Republican papers of Rich- 
mond, Baltimore, Philadelphia, New York and Boston 
continued to attack the conduct of "the farce at 
Richmond " in which a Chief Justice had been " con- 
niving at the escape of the traitor", and had been 
"accused by the Executive of maladministration of the 
law." l 

The Federalist papers, on the other hand, regarded 
Marshall's ruling as proof of the scrupulous care with 
which this trial of a man for his life was conducted by 
the presiding Judge — an honorable example of the 
Anglo-Saxon methods of criminal prosecution which do 
not relax the safeguards to the right of the accused, 
1 New York Daily Advertiser, Sept 1807; Aurora, Sept 11, 1807. Feb. 9, 1808. 

See also " Letters to John Marshall", by Lucius (William Thompson), 6rst printed 
'.n the Aurora, and the Richmond Enquirer. 

William Wirt wrote to Daluxv Carr, Sept. 1. IS07: "Marshall has stepped in 
between Burr and death. He has pronounced an opinion that our evidence is 
irrelevant. Burr not having been present at the island with the assemblage, and 
the act itself not amounting to levying war." On Sept. 8, he wrote: "You will 
see the opinion by which Marshall stopped the trial for treason. The trial for 
misdemeanour will begin today. It will soon be stopped." On Sept. 14, he wrote : 
"The second prosecution of Burr is at an end; Marshall has again arrested the 
evidence." That Wirt , however, was not too prejudiced to have a full apprecia- 
tion of Marshall's intellectual eminence was shown by a letter to Benjamin Kd- 
monds, Dec. H, ISO!), in which he said: "This power of analysis, the power of 
simplifying a complex subject and showing all its parts clearly and distinctly is 
the forte of Chief Justice Marshall." Wirt, I. 



IMPEACHMENT AND TREASON 311 

even in times of high political agitation. 1 "The digni- 
fied independence which has characterized the Court 
sitting at Richmond has reflected high honor on the 
jurisprudence of our country," said a Boston paper; 
while a Virginia paper characterized the attitude which 
all patriotic citizens demanded from the Courts, and 
which it found in Marshall's judicial conduct, as follows : 
"If Burr's crimes were ten times greater than the bit- 
terest of his enemies allege, we hope he will only suffer 
as the law directs. If once the law is subservient to 
motives of policy, or what is worse, to suit the views 
of party, we may bid a long farewell to all our boasted 
freedom. . . . The Judge does not make the laws, he 
expounds them, and is bound to see that the trial be 
conducted according to law ; such, we believe, has been 
the conduct of the Court on the present occasion, and 
such we hope it will ever be. The Judge who permits 
the reasons of State or popular opinions to influence 
his judgment would be a fit member for a Star Chamber 
Court or a revolutionary tribunal, but is wholly un- 
qualified for a Judge in a Court which has been estab- 
lished by the Constitution and laws of a free and inde- 
pendent Nation." 

The proceedings at the trial and Marshall's rulings 
had been followed with close anxiety by Jefferson, and 
frequent instructions had been sent by him to the 
United States Attorney George Hay. The motion made 
by Burr's counsel for the issue of a subpoena to Jefferson 
for the production of certain papers and Marshall's 
action in regard to it had angered the President, and 
seemed to deepen his conviction that the Chief Justice 
was intending to enhance the powers of the Judiciary 

1 Columbian Centinel, Sept. 19, 1807 ; Norfolk (Va.) Ledger quoted in Charleston 
Courier, Oct. 1, 1807. Marshall wrote to Peters, Nov. 23, 1807: "I might per- 
haps have made it less serious to myself by obeying the public Will instead of the 
public law." Peters Papers MSS. 



312 THE SUPREME COURT 

at the expense of the Executive. Very early, he had 
expressed his view to Giles that 4fc all the principles of 
law are to be perverted which would bear on the prin- 
cipal offenders who endeavor to overrun this odious 
Republic," and he clearly stated that a Constitutional 
Amendment would be necessary to curb the Judges : 
"The Nation will judge both the offender and Judges 
for themselves. If a member of the Executive or Leg- 
islature does wrong, the day is never far distant when 
the people will remove him. They will see them and 
amend the error in our Constitution, which makes any 
branch independent of the Nation. They will see that 
one of the great coordinate branches of the Govern- 
ment, setting itself in opposition to the other two, and 
to the common sense of the Nation, proclaims impunity 
to that class of offenders which endeavors to overturn 
the Constitution, and are themselves protected in it by 
the Constitution itself; for impeachment is a farce 
which will not be tried again. If their protection of 
Burr produces this Amendment, it will do more good 
than his condemnation would have done." To others 
of his friends, Jefferson expressed his resentment as to 
the outcome of the trial, writing to one that : "The 
scenes which have been acting at Richmond an 4 sufficient 
to fill us with alarm. We had supposed we possessed 
fixed laws to guard us equally against treason and op- 
pression. But it now appears we have no law but the 
will of the Judge. Never will chicanery have 4 a more 
difficult task than has been now accomplished to warp 
the text of the law to the will of him who is to construe 
it," and to another, he characterized "the scenes which 
have been enacted at Richmond" as "such as have 
never before been exhibited in any country where all 
regard to public character has not been yet thrown oil". 
They are equivalent to a proclamation of impunity to 



IMPEACHMENT AND TREASON 313 

every traitorous combination which may be formed to 
destroy the Union. However, they will produce an 
Amendment to the Constitution which, keeping the 
Judges independent of the Executive, will not leave 
them so of the Nation." ! 

The "unusual fermentation" into which the public 
mind had been thrown "by the conduct of John Mar- 
shall" and the "resentment and indignation which his 
conduct had excited" (as expressed by the Aurora) 
took definite form, two months after the trial, when the 
Republicans introduced into Congress a resolution for 
a Constitutional Amendment providing for a limited 
term of office for Federal Judges and for their removal 
by the President on address of two thirds of each 
House; 2 and again in 1S0S, the conduct of the Burr 
trial and of the Federal Judiciary became the subject of 
criticism voiced in forcible terms. In a report filed by 
John Quincy Adams for a special Senate Committee 
on the question of the expulsion of Senator John Smith 
for alleged connection with the Burr conspiracy, the 
rulings of the Chief Justice were hotly assailed and the 
possibility of impeachment intimated. 3 And in a de- 

1 Jefferson, X, letters to W. B. Giles, April 20, 1807, to William Thompson, Sept. 
26, 1807, and to James Wilkins, Sept. 20, 1807. 

2 See Aurora, March 17, 19, 22, 24, 1808, advocating this judicial reform, which 
was pressed again in Congress in 1808, 1811, and 1812, by Amendments introduced 
in the House by Republicans, calling for removal on address by a majority of the 
members of each House. In 1816, a similar amendment was introduced in the Sen- 
ate, in the debate on which Senator Sanford of New York said that the Judges were 
now "placed on an eminence more exalted than was consistent with the genius of 
our Government or the extent of the Constitution." 10th Cong., 1st Sess., Nov. 
5, 1807, 21, Feb. 22, 1808, 133; 12th Cong., 1st Sess., April 13, 1812, 317; Uth 
Cong., 1st Sess., March 18, 1816. 

3 10th Cong., 1st Sess., 56-63, Feb. 24, 1808; J. Q. Adams Writings, III, 730-844 ; 
Marshall, III, 541, 544. Writing of this report, Timothy Pickering said, Jan. 2, 
1808 : "Who that knows and respects the eminent abilities, the unsullied integrity, 
the great legal knowledge and the most amiable character of Chief Justice Mar- 
shall will not resent the unwarrantable insinuations that in the trial of Burr he 
'abused the benignity of general maxims'; 'withheld from the jury testimony 
sufficient for his conviction'; and that 'in consequence of this suppression of evi- 
dence' Burr was acquitted? Again, both the law and the Judge are assailed. 
The Judge is represented as having aimed to exclude from the mind of the jury 



314 THE SUPREME COURT 

bate on a bill to amend the law of treason, reported by 
Giles at Jefferson's request, 1 John Pope of Kentucky 
stated that: ''The Federal Judiciary is, to the people 
I represent, the most odious feature of the Government. 
It has been already very inconvenient and oppressive 
to them, and would have been much more so, but for 
some later decisions of the Supreme Court of the United 
States. These decisions have verv much lessened the 
evil. . . . My reflections have convinced me that 
we must, as far as the Constitution will authorize, re- 
strain the consolidating principle. This Government 
should interfere as little a- possible with the interior 
of the State>." Giles himself made a savage attack 
upon Marshall, without, however, specifically naming 
him; he contrasted the "honorable and dignified char- 
acter of an independent Jud^e" with "a Judi*c* who, 
forgetting the nature of his office, is perpetually aspiring 
not only to render his department absolutely independ- 
ent, but to render it supreme over all other departments 
of the Go vernment . . . reduced to the miserable politi- 
cal intriguer, scrambling for power." Of Giles' speech, 
Joseph Story "\* Massachusetts, who was then visiting 
Washington, wrote in picturesque fashioi): "Never 

did I hear BUch all-unhinging and terrible doctrine. 
lie laid the axe at the root of judicial power, and even- 
stroke might he distinctly felt. . . . One of its ob- 
jects was to prove the ri-ht of the Legislature to define 

1 by the curtain <>f artificial rules what the rabUest understanding oumol disguise, 

Crimea before which ordinary treason whiten into virtue. '" Pickcriiuj Papert 

See als"/' /' , - U 9 $ t let ter of .fan. S. lSIIS, ftf to A. lams' " vehemence ami 

precipitation <»f fhsraftei and obliquity of mind." John Randolph in ■ debate 
in the House, Peb. l. 1818, RMA Cong., ht Ssst., attacked kdami M who attempted 

to libel the present Chief Justice and procure hi> impeachment . making the 8eat 
of John Smith of Ohio the peg to hang the impeSM hment on." For an encomium 
on the report, see National Ar<jis, Jan. 18, 1806. 

1 Pickering wrote t<> King, Feb. M, 1808: "There u much opposition to GQes 1 

■n hill . . . hut as it i> a Presidential measure, it may pass, tho the appear- 
■JMeS ll this time are against it. All the distinguished Philadelphia lawyers who 
have beeo down here reprobate it in strong terms." 



IMPEACHMENT AND TREASON 315 

treason. My dear friend, look at the Constitution of 
the United States, and see if any such construction can 
possibly be allowed. I heard him with cool, deliberate 
attention; and I thought that he could be answered 
with triumphant force. He attacked Chief Justice 
Marshall with insidious warmth. Among other things 
he said: 4 I have learned that judicial opinions on this 
subject are like changeable silks, which vary their colors 
as they are held up in political sunshine.' " l 

Though the (iiles bill was defeated, the relation of 
Marshall to the Burr trial long continued to rankle in 
the Republican mind ; and while the Federalist view 
of Marshall's conduct has been largely accepted by 
historians, it must be admitted that the belief held by 
Jefferson and his followers that Marshall had been 
influenced by personal and partisan feeling in some of 
his rulings had considerable justification. 2 It is a re- 
markable tribute to his integrity, however, that criti- 
cism of this nature was never leveled against Marshall 
in any other case, either during his lifetime or in the 
years immediately succeeding his death. 3 

1 Story, I, 157, letter of Feb. 13, 1808. 

2 See John Marshall and the Constitution (1920), by Edward S. Corwin ; Prof. 
Andrew C. McLaughlin in Amer. Bar Ass. Journ. (1921), VII, 233, said: "Mar- 
shall's law may have been good ; but a critical examination may lead the trained 
lawyer to agree with Corwin that the case is a blemish on Marshall's career." As 
to Marshall's conduct in the Burr Case, see Harlan, J., in Sparf v. United States, 
156 U. S. 51, 68. 

3 Reverdy Johnson, a strong Democrat, in a speech in the Senate, May 10, 12, 
1848 (30th Cong., 1st Sess.), spoke of Marshall "whose honesty, except in the very 
excess of political madness, was never questioned but once, and in that instance 
only by Mr. Jefferson and that on account of the burning desire he felt to punish 
Aaron Burr." 



CHAPTER SEVEN 
JUDGE JOHNSON AND THE EMBARGO 

1808 

Republican anger over Marshall's part in the Burr 
trial lasted for many months and was voiced not only 
in the newspapers but in the formal toasts, which 
were the usual accompaniment of all celebrations in 
those days and of which the following are illustrative. 
"The Judiciary when they Marshall themselves on the 
side of treason, in opposition to law, justice and hu- 
manity, may they hear 'the small still voice' of the 
Nation ordering them from their unhallowed seats 
into eternal political oblivion," was a toast of the 
Washington Fusileers. "Choice Spirits — Pickering, 
Marshall and Burr. If raised above the 'dull pursuits 
of civil life' may it be done by impartially administer- 
ing to them the justice due from their country," was 
given at a Republican meeting in Connecticut, of 
which a Federalist paper said with indignation: 'The 
Chief Justice of the United States and a member of 
the Senate of the United States are associated with a 
murderer and a traitor, a wretch abandoned of his 
country and his God, and crucified with him in an- 
ticipation on the same tree. Look at the bloody annals 
of the French Revolution and you will find the diabol- 
ical spirit which dictated this toast — a spirit which 
seems indeed to have made an alarming progress in 
this country." 1 

Convening for its session in 1808 amid such an atmos- 

1 Aurora, July 11, 1808; New York Commercial Advertiser, Aug. 4, 1808. 







o 

H 

w 

Oh 

O 







JUDGE JOHNSON AND THE EMBARGO 317 

phere of hostility on the part of the Administration's 
followers, there can be little doubt that the Court did 
not welcome the fact that one of the first and most 
important cases which it was called upon to decide 
presented a question, the decision of which seemed 
likely to place it in conflict with one of the leading 
political contentions of the Administration. For sev- 
eral years, the impressment of American seamen and 
especially of naturalized Americans by the British 
had been one of the chief causes of friction in the in- 
ternational relations of this country. England main- 
tained with vigor that, as under its common law no 
British citizen could voluntarily expatriate himself, 
it had a right to take off of American ships any former 
British citizen, even though he were naturalized in the 
United States. Less than a year before, in June, 1807, 
the outrageous attack of the British frigate Leopard 
on the Chesapeake had raised the issue in its most 
serious concrete form. The President and the State 
Department had for many years stoutly denied the 
British contention, both as matter of law and matter 
of right. Yet as early as 1799, Chief Justice Ellsworth, 
in the case of Isaac Williams in the Circuit Court, 
had upheld the English law as to expatriation. The 
question had arisen in several cases in the Supreme 
Court, but a decision on the point had never been 
squarely made. In Mcllvaine v. Coxe's Lessee, % 
Cranch, 280, 4 Cranch, 209, it was now presented in 
a case involving the right of a native of New Jersey, 
who had become a loyalist refugee after 1776, to in- 
herit land in that State. The case had been first 
argued in 1805, by William Tilghman and Jared In- 
gersoll for the right of expatriation against William 
Rawle and Richard Stockton. "The doctrines ad- 
vanced upon the present occasion," said Ingersoll, 



318 THE SUPREME COURT 

"are to me, novel, strange and alarming. . . . That the 
French who aided us are called aliens, while the Brit- 
ish loyalist refugees may hold lands as a citizen, is a 
language I do not understand. If the law is so, it 
is strange, and I must abandon an idea I have always 
cherished, that the rules of law were founded in sound 
sense." No decision was reached in 1805, as only 
four Judges were sitting (Cushing, Paterson, Wash- 
ington and Johnson), Marshall having been interested 
in the point involved as counsel in another case, and 
Chase being engaged in his impeachment trial. Later, 
after Paterson's death and the accession to the Bench 
of Judges Livingston and Todd, it was reargued, 
in 1807, by Peter S. Duponceau and Jared Ingersoll 
against William Rawle and Edward Tilghman, before 
Chase, Washington, Johnson and Livingston (Mar- 
shall and Cushing being absent). Over a year later, 
in 1808, the Court decided through Judge Cushing 
(Johnson, Todd and Marshall taking no part in the 
decision) that by the express provisions of the New 
Jersey statute Coxe was a citizen of that State in 
177G, and was by force of that law M incapable of throw- 
ing off his allegiance to that State/ 1 By declining 
to express an opinion "upon the right of expatriation 
as founded on the common law", and by thus rest- 
ing its decision on the fact that "the Legislature of 
that State by the most unequivocal declarations asserted 
its right to the allegiance of such of its citizens as had 
left the State", the Court saved itself from being 
placed in the awkward position of upholding a doc- 
trine which the Executive authorities of the country 
were warmly denying in their diplomatic correspond- 
ence with England. 1 

1 The authority of this case was much weakened twenty-two years later by the 
decisions in the famous cases of Inglis v. Sailor's 8nug Harbour, \\ Pet. 99, argued 
by David B. Ogden and Daniel Webster against William Wirt and Samuel Tal- 



JUDGE JOHNSON AND THE EMBARGO 319 

In another class of cases at this 1808 Term, the 
Court was not so successful in escaping a conflict with 
the sentiment of the Administration and of the politi- 
cal party then in power. The numerous captures of 
American ships by French and British privateers, 
under Napoleon's arbitrary and illegal Berlin and 
Milan decrees and under the equally arbitrary and 
illegal British Orders in Council, had presented the 
question whether the American Courts should follow 
the British doctrine as to conclusiveness of the de- 
cisions of foreign Prize Courts. 1 In Croudson v. Leon- 
ard, 4 Cranch, 434, in which an American ship had 
been captured by the British and condemned by a 
British Prize Court for attempting to break the block- 
ade, the company in which the ship was insured con- 
tended that the assured could not recover, since he was 
bound by the finding by the British Court as to un- 
neutral behavior; the assured contended that, in 
view of the irregular and unjust decisions of both Brit- 
ish and French Courts, an American Court ought 
not to follow the rigid British rule, and that it ought 

cott, and Shanks v. Dupont, 3 Pet. 242, argued by William Wirt and Cruger against 
Hugh L£gar6. See Treatise on Expatriation (1814), by George Hay; Review of a 
Treatise on Expatriation (1814), by John Lowell; The Right of Expatriation, Amer. 
Law Rev. (1877), XI, 477; The Right of the American Citizen to Expatriate, by G. 
B. Slaymaker, ibid. (1903), XXXVII ; Expatriation, Law Reporter (1859), XXII. 

1 In a Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the 
United States (1824), by Peter S. Duponceau, 124, it was termed a doctrine of 
injustice "fatal to our neutral interests — which was not finally settled even in 
England until a case in the House of Lords in 1803 (Lothian v. Henderson, 3 Bos. 
& Pull, 499) and much discussed and denied in the United States by Judge Living- 
ston, Judge Cooper, DeWitt Clinton, and Alexander J. Dallas." 

In 1802, a decision of the highest Court of New York in V andenheuvel v. United 
Ins. Co. holding a foreign Court decree not conclusive was highly praised by the 
New York papers, which stated that it was "highly impolitic in a neutral nation to 
admit foreign admiralty decisions as conclusive; opposed to the best interests of 
commerce, contrary to the spirit and nature of an insurance, and destructive of 
all substantial justice between our own citizens." See Salem Register, March 4, 
1802. 

Jefferson wrote to Gallatin, July 12, 1803: "Every attempt of Great Britain to 
enforce her principle of, ' once a subject and always a subject,' beyond the case 
of her own subjects, ought to be repelled." Jefferson, X. 



320 THE SUPREME COURT 

to allow an assured to introduce proof that he had 
violated no well-established law of neutrality. Judge 
Washington, however (Marshall, Johnson and Crush- 
ing concurring, and Livingston and Chase dissent- 
ing), held that the British rule must be followed, and 
that "if the injustice of the belligerent powers and of 
their Courts should render this rule oppressive to the 
citizens of neutral nations, . . . let the government 
in its wisdom adopt the proper means to remedy the 
mischief." This decision, adopting an English doc- 
trine of law resulting in ureal advantage to England, 
and made at the very time when the Administration 

was attacking England by means of Embargo and 
Non-intercourse Laws, wbb deeply resented by the 
Republicans. 1 Two other cases at this 1808 Term, 
Rose v. Himely, 4 Cranch, 841, and Hudson v. Questier, 
4 Cranch, 208, involving unjustifiable acts <^ French 
privateers, may he noted becauseof the length of time 
occupied in argument, nine days, and the number of 
eminent counsel engaged Charles Lee, Robert (<. 
Harper, Alexander .!. Dallas, William Rawle, Jared 
[ngersoll, -Jr., John Drayton and Samuel Chase, Jr., 
against Peter S. Duponceau, Edward Tilghman, and 

Luther Martin.- 

After the Court adjourned in March, 1S0S, its Jud 
were now brought into contact with a serious situation 

in the country which called upon the Court, as Boon 

as it should next convene, to exercise its greatest func- 
tion under the Constitution, that of composing the 

discordant elements in the framework of the new 
Government and promoting the National Union. 
1 Moduon, VII. m letter ««f liadiaon to Jeffenon, Jane W, ism. referring to 

the CMC oi Dcmpsni v. Thr // I <>nif>iuu/ "/ /'< n nsi/htinui (argued IB ISO? 

and 1806 and dieconed in Calhoun v. Tfi> Insurance Company <>f Penfuy/wmto, 
1 Binney, 898) end laying: "It ii ;i m<«st tnoroogn and irrefragable <li>|>rc><.f <>f 
the British doctrine <>n tin- nibjed ;■* adopted by i decision <»f tin- Supreme Court." 
■Story, I. 161, !<;:>. letters ol Feb 16, 16, 1806, 



JUDGE JOHNSON AND THE EMBARGO 321 

For some years, there had been a distinct tendency 
in the Northern States to give more and more consider- 
ation to the possibility of the dissolution of the Union 
and the establishment of a Northern Confederacy. 
Four factors had been prominent in developing this 
sentiment. In the first place, the Federalists of the 
North were devoted partisans of Great Britain, and 
Jefferson's hostility to that nation and his partial- 
ity for France had always aroused their grave appre- 
hensions lest he might force the country into war. 1 
In the next place, the Federalists regarded Jeffer- 
son's annexation of Louisiana as an unconstitutional 
act which was bound to prove ruinous to their inter- 
ests. As has been well said : "Jefferson was a dem- 
ocrat, a people's man upon conviction, genuinely 
and with a certain touch of pas>ion; but he was no 
lawyer. He stickled for a strict construction of the 
Constitution only when he thought that a strict con- 
struction would safeguard the rights of common men 
and keep the Federalist theories of government at 
arm's length : not because he disliked to sec the coun- 
try have power as a Nation, but because he dreaded to 
sec it put in bondage to an autocratic government. 
He wanted as little governing from the Federal Cap- 
ital as might be, but as much progress as might be, 
too. ... It was his weakness to think it safe for the 
friends of the People to make a 'blank paper' of the 
Constitution, but the very gate of revolution for those 

1 The extent of Massachusetts predilections for Great Britain was illustrated 
by an entry in John Quincy Adams' Memoir*, 1, May 10, 1808: "I called on Chief 
Justice ^Theophilus) Parsons and had some conversation with hira on political 
subjects. I found him, as I expected, totally devoted to the British policy and 
avowing the opinion that the British have a right to take their seamen from our 
ships, have a right to interdict our trade with her enemies, other than peace trade, 
and a right by way of retaliation to cut off our trade with her enemies altogether. 
He also thinks the people of this country corrupted, already in a state of volun- 
tary subjugation to France. . . . The only protection of our liberties, he thinks, 
is the British navy." 

VOL. I — 11 



322 THE SUPREME COURT 

who were not Democrats. If only Democrats led, 
'the good sense of the country would correct the evil 
of construction (of the Constitution) when it should 
produce ill effects.' In the older and more stubborn 
Federalists, it naturally bred a sort of madness to see 
Mr. Jefferson turn loose-constructionist to do the very 
things which they most dreaded in their political 
calculations. In New England, it seemed to many 
who were high in the Federalist councils a thing not to 
be borne that a great field of expansion should be 
opened at the very doors of the South and West, to 
the undoing of the East, which had no free space in 
which to grow, and must lose her weight in affairs when 
the West came to its power. It was this that made 
them talk of disunion and of an independent Confeder- 
ation to be set up at the North." ! 

In the third place, the Federalists were seriously 
alarmed at the inveterate hostility to the Federal 
Judiciary which Jefferson had so long displayed ; 
for not only did they consider this to be an example 
of his insistence upon an unchecked, arbitrary, Ex- 
ecutive power, 2 but they believed, and with much rea- 

1 A History of the American PeopU (1002). by Woodrow Wilson, III, 183-181. 
Jefferson had said in his letter of Sept. 7, 1803, to Wilson C. Nicholas, regarding 
the annexation of Louisiana: "I had rather ask an enlargement of power from the 
Nation, when it is found necessary, than to assume it by a construction which 
would make our powers boundless. Our peculiar security is in the possession of 
a written Constitution. Let us not make it a blank paper by construction. . . . 
I think it important in the present case to set an example against broad construc- 
tion by appealing for new power to the people. If, however, our friends think dif- 
ferently, certainly I shall acquiesce with satisfaction, confiding that the good sense 
of our country will correct the evil of construction when it shall produce ill effects.'' 
Jefferson, X. 

Jeremiah Smith wrote to William Plumer, Nov. 21, 1803: "Is it possible that 
we can stick together as a nation when there is so little cement and so much cen- 
trifugal force in this heterogeneous mass?" Life of Jeremiah Smith (1815), by 
John H. Morrison. 

2 The Aurora, Jan. 28, 1805, said the National Judiciary "is a prodigious mon- 
ster in a free government — to see a class of men set apart, not simply to administer 
the law but who exercise a legislative and even an Executive power, directly in 
defiance and contempt of the Executive." 



JUDGE JOHNSON AND THE EMBARGO 323 

son, that in thus weakening the Judiciary, Jefferson 
was undermining one of the fundaments of the Con- 
stitution. "The persecution of the Judiciary power 
was believed by the Federalists to form a part of Mr. 
Jefferson's political system," wrote John Quincy Adams. 
"It was believed to be further stimulated by personal 
aversion to the Chief Justice, and by resentment for 
the decision of the Supreme Court in the case of Mar- 
bury and Madison. In the political creed of the Fed- 
eralists, the independence of the Judiciary was the 
sheet-anchor of republican freedom. They thought 
they perceived in Mr. Jefferson's opinions and conduct 
a deliberate and systematic attempt to break it down ; 
and they were seriously alarmed for the only barrier 
upon which they could rely for protection against pro- 
scriptions more terrible than mere removals from office. 
These apprehensions were perhaps exaggerated ; but 
there was too much foundation for them. Mr. Jeffer- 
son's radical animosities and prejudices against the 
Judiciary power have had an unwholesome influence 
upon the public opinions of the American people. . . . 
The alarm and disgust of the New England Federalists 
at Mr. Jefferson's anti-Judiciary doctrines and meas- 
ures were then prevailing at their highest pitch and 
were one of the efficient causes which led to the proj- 
ect of separation and a Northern Confederacy." * 
This view of Jefferson's policy was not confined to the 
North, but Southern Federalists felt also that, as one 
of their newspapers said: "It is an alarming fact 
that the same party which has brought us into our 
present difficulties entertain a deadly and exterminat- 
ing hatred of the independence of the Judiciary, and 
pass by no occasion to vent upon them reproaches 

1 Documents Relating to New England Federalism (1877), by Henry Adams, let- 
ter to the Citizens of the United States in 1829, 160-162; Baltimore North 
American, July 29, 1808. 



324 THE SUPREME COURT 

and injuries, in the hope of degrading them in the opin- 
ion of the people, and in order to reconcile the public 
to the blow which is meditated for their ruin and with 
them that of the public liberty." "I have unlimited 
confidence in our Judiciary," wrote Philip B. Key, in 
January, 1808, "but the storm that is gathering round 
them is alarming." 1 

Finally, ever since the enactment of the Embargo 
Laws in the latter part of 1807 and early in 1808, the 
Federalists of New England and New York were 
convinced that Jefferson was wantonly resolved to 
destroy the factor on which all their wealth and pros- 
perity was deemed to depend — their sea-borne com- 
merce. Throughout the spring, the excitement grew 
more and more intense ; violations of the laws became 
frequent ; obstructions to its enforcement arose on 
all sides ; in some places open violence and forcible 
resistance had taken place. It was inevitable that 
the Federal Courts should soon be drawn into the 
situation, and that the question of judicial power 
should again arise as a serious political issue. It 
was, however, a matter of considerable astonishment 
and resentment to Jefferson that the first judicial 
act of interference with his Embargo Laws should 
come from his own Republican appointee to the Court, 
the young Judge, William Johnson, and from the strongly 
Republican State of South Carolina. The episode 
forms one of the most striking illustrations of judi- 
cial independence in American history, and deserves 
more detailed notice than has hitherto been given to 
it. The case in which Judge Johnson felt called upon 
to act arose in the United States Circuit Court for the 
District of South Carolina — Ex parte Gilchrist. 2 Un- 

1 The Granville Estate and North Carolina, by H. G. Connor, Univ. of Penn. 
Law Rev. (1914), LXII, quoting letter of Key, Jan. 4, 1808. 

2 5 Hughes, 1 ; UalVs American Law Journal (1808) ; Federal Cases No. 5420. 



JUDGE JOHNSON AND THE EMBARGO 325 

der the Embargo Act of April 25, 1808, collectors 
of customs were required to detain any vessel os- 
tensibly bound with cargo to United States ports, 
whenever in their opinion the intention was to evade 
the Embargo. In the enforcement of this law, Jeffer- 
son had assumed to direct the Secretary of the Treas- 
ury to instruct collectors to detain all vessels loaded 
with provisions and such a letter of instruction was 
sent out, in spite of the fact that the statute expressly 
vested the collectors with the right of determination 
as to detention. 1 This action had aroused intense 
excitement, especially at the North. It was termed 
"the most extraordinary, the most daring and un- 
equivocal of all his insidious encroachments upon 
the liberties of the people", "despotic power gather- 
ing into the hands of the Executive officers." "The 
attempt to stop a vessel is wholly lawless ; the Act which 
directs an official to do so is wholly unconstitutional ; 
the circular is wholly without authority — an out- 
rage on the dignity and sovereignty of a State, a vio- 
lation of the sacred compact which unites these 
States." 2 A test of its legality was at once made 
in the Circuit Court, when on May 24, a vessel owner 
in Charleston petitioned for a mandamus to require 
the collector to grant a clearance of a vessel bound 
for Baltimore and loaded with rice, clearance of which 

1 Works of Albert Gallatin (ed. by Henry Adams, 1879), I, letter of Jefferson 
to the State Governors, May 6, 1808, in which he said: "Congress, therefore, 
finding insufficient all attempts to bind unprincipled adventurers by general rules, 
at length gave a discretionary power to detain absolutely all vessels suspected of 
intention to evade the Embargo Laws, wherever bound. In order to give to this 
law the effect it intended, we find it necessary to consider any vessel as suspicious, 
which has on board any article of domestic produce in demand at foreign markets, 
and most especially provisions." See also letter to Gov. Pinckney, July 18, 1808, 
infra. 

2 Boston Repertory, May 17, 20, 1808; Boston Gazette, May 19, 1808; Connecti- 
cut Courant, May 25, 1808, quoting also Salem Gazette, and Washington Federalist, 
which said that it appeared that the statute itself "does not go sufficiently far to 
gratify Mr. Jefferson's hatred to commerce" ; Charleston Courier, May 23, 25, 1808. 



326 THE SUPREME COURT 

had been refused by the collector, acting under the Pres- 
idential instructions, though he personally was of opin- 
ion that the vessel was not intending to evade the Em- 
bargo. 1 Four days later, Judge Johnson announced 
his decision, granting the mandamus and holding Jeffer- 
son's instructions to the collector to have been illegal 
and void, as unwarranted by the statute. "We are 
of opinion," he said, "that the Act of Congress does 
not authorize the detention of this vessel," under 
the facts presented ; that without the sanction of 
law, "the collector is not justified by the instructions 
of the Executive in increasing restraints upon com- 
merce. ... At the utmost the collector could only 
plead the influence of advice, and not the authority 
of the Treasury Department, in his justification." 
And this young Republican Judge, then only thirty- 
six years old, and only four years after his appoint- 
ment on the Supreme Bench by a Republican Presi- 
dent, used these notable words of warning from the 
Judiciary to the President: "The officers of our gov- 
ernment, from the highest to the lowest, are equally 
subjected to legal restraint ; and it is confidently believed 
that all of them feel themselves equally incapable, 
as well from law as inclination, to attempt an unsanc- 
tioned encroachment upon individual liberty." 2 

No decision in a Federal Court ever rendered up to 
that time (except that in the Burr Case) received so 
full publication or so widespread notice in the news- 
papers. The Federalist press seized upon it with 
glee as a strong rebuke by a Republican Judge to 
a Republican President. 3 "We have never witnessed 

1 Charleston Courier, May 26, 28, 30, 31, 1808. 

2 HalVs American Law Journal (1808), I. 

3 New England Palladium, June 10, 1808; Columbian Centinel, June 1& 1808; 
Boston Repertory, June 10, 14, 1808, quoting Gazette of the United States; Boston 
Gazette, June 13, 16, 1808, quoting Philadelphia Register; Charleston Courier, May 
30, June 25, 1808, quoting Norfolk Ledger (Va.) ; Baltimore North American, June 



JUDGE JOHNSON AND THE EMBARGO 327 

a decision which gave such general satisfaction," 
said the Charleston Courier. "It affords another mem- 
orable example of the necessity of an independent 
Judiciary who will give to the law the legal explana- 
tion." "We are glad to find by the decision at Charles- 
ton that there is some tribunal to which an American 
citizen can resort to know whether a public officer is 
conforming to law or not," said a Boston paper. "It 
gives us great pleasure to find that Judge Johnson 
has sufficient integrity and independence to make the 
laws of the land and not the will of the Executive 
the rule of his judicial conduct," said a Philadelphia 
paper. "Nothing in the conduct of the present Ad- 
ministration is so alarming to the liberty and inde- 
pendence of the country as the repeated attempts 
they are making to give to Executive proclamations 
and circular letters the force and effect of law. If 
the President could once get the control that he wishes 
and that his partisans wish to give him over the Court, 
the power of Congress would become as nugatory in 
this country as that of Bonaparte's Senate is in France, 
and Presidential mandates would constitute the law 
of the land"; and another Philadelphia paper said: 
'What must the decision of the country be and what 
the disposition of the Executive Government, when 
the judicial authority, appealed to by the citizens 
to rescue them from the fangs of a Secretary of the 
Treasury, is compelled to interpose its constitutional 
veto and to forbid a collector at his peril to execute 
instructions abridging the rights of the citizen?" 
A Virginia paper said: "The importance of an in- 
dependent Judiciary to control the arbitrary or mis- 
taken construction of the laws by Executive officers 

6, 8, 1808; American Daily Advertiser (Phil.), June 8, 25, 1808; National Intelli- 
gencer, June 13, 1808 ; Savannah Republican, June 25, 1808. 



328 THE SUPREME COURT 

cannot be appreciated too highly. We beseech the 
reader to reflect upon the subject seriously and view 
with more than ordinary suspicion the man who is 
hostile to an independent Judiciary. Let it not be 
said that the Judges are Federalists and enemies of 
the present Administration. Judge Johnson was ap- 
pointed by Mr. Jefferson and proves from this Act 
that he is worthy of the appointment." A Balti- 
more paper said that the opinion would "add another 
ray to the lustre of the American Bench, that this gen- 
tleman who owes his elevation to Mr. Jefferson has 
not hesitated to maintain the predominancy of the 
law over Executive usurpations." 

Some of the Republican papers attempted to min- 
imize the effect of the decision, by denying that it was 
"a censure upon the President", and by asserting 
that the decree was rendered by assent of the col- 
lector in order to have the question of law settled. 
"It is not like the cases of Capt. Murray or Capt. 
Little under a former Administration, in which it was 
decided that their instructions were illegal so as not 
to protect them against actions of trespass for the 
damage occasioned." 1 Others assailed the Judiciary 
in general, the Aurora saying: "The following ex- 
traordinary case will be read with the greatest as- 
tonishment. It affords another memorable example 
of the profligacy of the Judiciary, who will give to the 
law an explanation perverting its intention and in 
jl < violation of the most sacred rights and best policy 
of the Nation and Government. . . . An additional 
proof of the monstrous absurdity of what is called the 
independence of the Judges. They are, in fact, so 
independent of control and of every other tie but that 

1 Independent Chronicle, June 20, 1808; Aurora, June 9, 1808; Baltimore Whig, 
quoted by Charleston Courier, June 25, July 13, 1808. 



JUDGE JOHNSON AND THE EMBARGO 329 

of their own perverse will, against the very princi- 
ples of the government, that unless their tenure of 
office is altered and that corps brought to some sort 
of responsibility, they must in the end destroy the 
government. If the laws and policy of the Nation 
are to be set aside upon a quibble, if the very princi- 
ples of peace and war are to be involved in the wretched 
subterfuges and equivocations of this subtle class 
of men, what avails all the superiority of a representa- 
tive government which cannot check or chastise the 
crimes of such a class?" 

President Jefferson, himself, did not attempt to 
disguise the fact that he regarded Johnson's action as 
a direct attack upon him and upon his Embargo pol- 
icy. If he had been indignant at Marshall's inter- 
ference with his Executive functions, he was still more 
agitated at this invasion by his own appointee. Ac- 
knowledging receipt of the proceedings of the Court 
from Governor Pinckney of South Carolina, he wrote : 
"I saw them with great concern, because of the quar- 
ter from whence they came and where they could 
not be ascribed to any political waywardness." 1 To 
counteract the effect of this "oppugnation", he at 
once secured an opinion from his Attorney-General, 
Caesar A. Rodney, controverting Johnson's state- 
ment of the law, and this opinion he distributed widely 
to the press — "an act unprecedented in the history 
of Executive conduct." 2 :< This question has too 
many important bearings on the constitutional organi- 
zation of our government to let it go off so carelessly," he 
wrote to Governor Pinckney. "I send you the Attorney- 

1 Works of Thomas Jefferson (H. A. Washington, Ed.), IV, letter of July 18, 1808. 

2 See History of the United States (1890), by Henry Adams, IV, 263 et seq. See 
opinion in full in Aurora, Aug. 9, 1808; American Citizen, Aug. 5, 1808, quoting 
Washington Monitor; and in numerous other papers of both political parties; 
and UalVs American Law Journal (1808), I. 



330 THE SUPREME COURT 

General's opinion on it, formed on great consideration 
and consultation. It is communicated to the collec- 
tors and marshals for their future government. I hope, 
however, the business will stop here, and that no simi- 
lar case will occur. A like attempt has been made 
in another State which, I believe, failed in the outset." 
In this opinion, dated July 15, 1808, Rodney argued 
at length that under the Judiciary Act a Judge of 
the Circuit Court had no power to issue mandamus, 
contending that the statute vested that power ex- 
clusively in the Supreme Court ; and he had the te- 
merity to cite to Jefferson in support of this proposition 
the case of Marbnrij v. Madison, in spite of the fact 
that Jefferson had written, only the year before, to 
United States Attorney Hay in the Burr trial that 
he wanted "the gratuitous opinion'' in that case 
"brought before the public and denounced as not law." 
Rodney further argued that Johnson's denial of Ex- 
ecutive power to instruct was wholly unjustified, that 
" in this case there was a controlling power in the Chief- 
Magistrate", and that Johnson was seeking to im- 
pose unlawful restraints upon Government officers, 
agents of the Executive, in the due and legal admin- 
istration of the law. "There does not appear in 
the Constitution of the United States anything 
which favours an indefinite extension of the jurisdiction 
of Courts over the ministerial officers within the 
Executive Department. . . . There appears to be a 
material and obvious distinction between a course 
of proceedings which redresses a wrong committed 
by an Executive officer, and an interposition by a man- 
datory writ, taking the Executive authority out of the 
hands of the President, and prescribing the course 
which he and the agents of any Department must 
pursue." This part of his opinion was, in fact, a direct 



JUDGE JOHNSON AND THE EMBARGO 331 

denial of the law as to the issue of mandamus to 
officers on whom Congress had imposed a statutory 
duty, as laid down by Marshall in the Marbury 
Case. On their publication, Rodney's views and 
the impropriety of Jefferson 's action were commented 
on with derision, indignation and condemnation by 
the Federalist press. 1 The Charleston Courier termed 
it a "new stroke of Executive policy" and denied 
that any authority was to be found in the Con- 
stitution or the laws, for an Executive officer "to 
sit in judgment on the decisions of an independ- 
ent tribunal." It asked: "What is the object of 
this letter? Is it published by authority, in terrorem? 
Is it meant to show the Presidential disapprobation 
of the decree of the Court? Where does this lead? 
Stride after stride, and the Judiciary will be thus 
trampled into contempt! Beware, citizens, 'ere 'tis 
too late." A Philadelphia paper said that the Attor- 
ney-General lately assumed the desperate task of 
upholding the President's circular and that the whole 
of his ingenuity had been put into requisition. " It 
is one of those abortive and indecorous attempts, the 
like of which has never been witnessed by the citizens 
of the United States who have been accustomed to 
regard in reverence the solemn decisions of the highest 
tribunals, as the criterion of Executive usurpations 
and the . . . subservience of the opinions of its agents. 
Well may we consider our liberties as in danger, when 
the constitutional organs to pronounce what the law 
is are contemned by an officer, who exists in the breath 

1 Charleston Courier, Aug. 9, 16, 22, Sept. 6, 12, 14, 20, 1808; Baltimore North 
American, July 26, 29, Aug. 3, 1808 ; New York Commercial Advertiser, Aug. 13, 
1808, quoting other papers and publishing letters from correspondents ; National 
Intelligencer, Aug. 1, 1808; Savannah Republican, Aug. 11, 1808; Boston Repertory, 
Sept. 23, 27, 1808, quoting letter from "Tullius" of Virginia in Gazette of the United 
States ; New York Evening Post, March 23, 1809 ; American Daily Advertiser, Feb. 
6, 1809, quoting letter in Savannah Museum. 



332 THE SUPREME COURT 

of the Executive whose act is in controversy, and that 
contemnacy is approved and sent to subordinate agents 
as the rule and the reason of not obeying the pro- 
nounced law of the land." Another wrote: "The 
novel idea of setting up the opinion of the Attor- 
ney-General by our Executive in opposition to the 
solemn judgment of the Circuit Court cannot fail to 
attract the attention of our citizens and the surprise 
of all foreigners. Mr. Jefferson is himself a lawyer 
and ought to know how degrading to the Court and how 
dangerous and unconstitutional is such 1 a precedent. 
The opinion is a labored apology for the conduct of gov- 
ernment and oughl to be received with caution, and the 
legality of it is certainly very questionable." Another 
wrote that tlie "Grand Caucus at Washington" had sent 
to every collector an opinion of the Attorney-General 
"commanding them to disobey all mandamus that 
may hereafter issue from the judicial Courts. Amer- 
icans, pause and reflect ! The once independent Ju- 
diciary of the United States, the bulwark and safe- 
guard of all you hold valuable, is about to he 
subverted." A Legal correspondent wrote that Rod- 
ney's "quibbles and misrepresentations, little com- 
porting with that dignified conduct which ought to 

characterize the At torney-( ieneral", were in reality 

intended, not for the President, but for the public, 
and were, therefore, " couched in a language calculated 
to impose on the uninformed, and concluding with 
insinuations corresponding with the vulgar prejudice 

against the Judiciary. This preparing and publish- 
ing such an opinion is truly characteristic of the man 
who directs the destinies of this unfortunate coun- 
try. To such a man, an Attorney-General who will 
descend to misrepresentation and sophistry, who 
will defend the proceedings of his master, per fas 



JUDGE JOHNSON AND THE EMBARGO 333 

et nefas, who does not hesitate to furnish aliment 
for that unfounded jealousy of the Judiciary which 
pervades the country and threatens to destroy the 
fairest principles of our law — to such a President, 
such an Attorney-General is above all price. The 
world may truly say of them — par nobile fratrum" 
Another wrote later of the opinion of "Caesar Rodney 
that obsequious lackey and ever-ready tool of Mr. 
Jefferson . . . endeavoring to prove that it was the 
right of the Secretary of the Treasury and the Pres- 
ident to expound the laws and that the Court 
and Judges had nothing to do with them ... a 
scandalous invasion of the people's rights." A South- 
ern correspondent wrote: "What a manifest vio- 
lation of the principles of righl and freedom are dis- 
played by the Executive in these instructions! An 
innovation that, if not duly resisted and broken through 
by the power of the Judiciary, would render us in 
this Southern quarter, were it to have effect, solely 
at the will of the President; for if provisions were 
to be prohibited from being transported coastwise, 
we should soon feel all the effects of the severest fam- 
ine. By recognizing in the Executive such a power, 
we would in a manner be putting our very existence 
into his hands." 

In reply to this criticism, the Republican papers 
praised the opinion as a just rebuke to the Judge. 
"It is clear and lucid, supported by irresistible ar- 
gument and legal fact, and goes far to destroy that 
operative influence which the Federal party expect 
to use to mar the proceedings of the Executive in 
the discharge of their great and important National 
duties. In fact, the issuing of a writ of mandamus 
by a Circuit Court is considered as an assump- 
tion by the Judiciary both of the Legislative and 



334 THE SUPREME COURT 

Executive duties, and as such ought not to be sub- 
mitted to." 1 

Upon finding that the opinion had been given to the 
press and sent to the Federal collectors, Judge John- 
son took the unusual course of issuing to the public 
an elaborate and somewhat pugnacious defense of 
his decision and further explanation of the legal grounds 
on which it was based, in controversion of Rodney's 
argument. 2 "The Courts do not pretend to impose 
any restraint upon any officer of government, but what 
results from a just construction of the laws of the 
United States," he said. "Of these laws, the Courts 
are the constitutional expositors, and every depart- 
ment of government must submit to their exposition ; 
for laws have no legal meaning but what is given them 
by the Courts to whose exposition they are submitted. 
It is against the law, therefore, and not the Courts 
that the Executive should urge the charge of usur- 
pation and restraint — a restraint which may at times 
be productive of inconveniences, but which is cer- 
tainly very consistent with the nature of our govern- 
ment — one which it is very possible the President 
may have deserved the plaudits of his country for hav- 
ing transcended, in ordering detentions not within 
the Embargo Acts, but which, notwithstanding, it is 
the duty of our Courts to encounter the odium of 
imposing." After reinforcing his argument with nu- 
merous citations from Jefferson's bugbear, the Mar- 
bury Case, he concluded with these bold words : "There 
never existed a stronger case for calling forth the 
powers of a Court ; and whatever censure the Ex- 
ecutive sanction may draw upon us, nothing can de- 

1 American Citizen (N. Y.), July 30, 1808, quoting Baltimore North American; 
Richmond Enquirer, July 29, 1808. 

2 Charleston Courier, Oct. 15, 17, 18, 1808 ; HalVs American law Journal (1808) I, 
letter of Johnson, Aug. 26, 1808. 



JUDGE JOHNSON AND THE EMBARGO 335 

prive us of the consciousness of having acted with 
firmness, impartiality and an honest intention to dis- 
charge our duty. ... It may be possible to prove 
the Court wrong in interposing its authority ; but cer- 
tainly establishing the point of their want of juris- 
diction will not prove the legality of the instructions 
given to the collector. The argument is not that the 
Executive have done right, but that the Judiciary had 
no power to prevent their doing wrong." 

These sentiments coming from a Republican Judge 
again elicited enthusiastic approval from the Fed- 
eralists. "They are expressed in a bold, manly, 
energetic and indignant style, evidently flowing from 
a mind conscious of rectitude and superior intelligence," 
said one paper. "Since the present Administration 
came into power, a contest has been maintained with- 
out intermission between the Executive and the Ju- 
dicial departments. The hostility of Mr. Jefferson 
to an independent Judiciary is by no means a matter 
of conjecture — it is a known and undoubted fact. 
Either directly, or through the agency of others, he 
has made many dangerous attacks upon this depart- 
ment. He has been successful in only one; but if 
either he, or men of similar sentiments, continue to 
retain their influence over the people, he will ulti- 
mately prevail. It is, therefore, of consequence that 
full information upon any question connected with 
the system should be laid before the people." * And 
another said: "The Judge reprehends, with an hon- 
est and independent spirit becoming his high station 
and essential to the public liberties which are in his 
keeping, this unheard-of attack by Executive officers 

1 New York Commercial Advertiser, Nov. 2, 1808, quoting Baltimore Federal 
Republican; Baltimore North American, Oct. 29, 1808; Charleston Courier, Nov. 
16, 1808. Republican newspapers also published Johnson's reply in full, see 
American Citizen, Nov. 7, 8, 1808. 



336 THE SUPREME COURT 

upon the privileges and respect due to his office." At- 
torney-General Rodney was considerably aroused by 
Judge Johnson's reply and wrote to Jefferson the 
following interesting and pungent letter, suggesting 
that an answer be made to what he termed "John- 
son's apology for his opinion" : ! 

... It is very evident that Judge Johnson has taken 
serious offence at the publication of the examination of 
his opinion. He seems to forget that all his proceedings 
have gone abroad and were published in every State in 
the Union. It would seem but fair that the bane and the 
antidote should circulate together. He has enlisted fairly 
under the banner of the Judiciary and stands forth the 
champion of all the high-church doctrines so fashionable 
on the Bench. I cannot but lament the state of my pro- 
fession. There was a period, and a proud period it was, 
when they acted a patriotic part. Now they are, in general, 
for destroying the fair fabrick which the profession contrib- 
uted so much to erect. The judicial power, if permitted, 
will swallow all the rest. They will become omnipotent. 
No other Administration than yours could progress under 
such circumstances. It is high time for the people to apply 
some remedy to the disease. You can scarcely elevate a 
man to a seat in a Court of Justice before he catches the 
leprosy of the Bench. I had understood thai Judge John- 
son last winter, in consequence of your remarks in the Mes- 
sage relative to the Circuit Court of Virginia, had made a 
question with the Bench whether the Judges should wait 
on the President. Judge Washington gave the casting vote 
in favor of so doing. I could not credit it at the time, but 
I now suspect the report was correct. He breathes through- 
out a spirit of hostility to the present Executive, and has, 
perhaps, some view as to the election of a future, from the 
peroid at which he has published. His piece may be easily 
assailed, for it is extremely vulnerable. Shall I enter the 
lists with him in a temperate review of his observations? 

1 Jefferson Papers MSS, letter of Rodney, Oct. 31, 1808; this letter seems never 
to have been published. Jefferson's reply does not appear in any of the printed 
collections of his correspondence, or in his MSS papers in the Library of Congress. 



JUDGE JOHNSON AND THE EMBARGO 337 

Shall I defend in my individual capacity an opinion given 
in my official character ? The case really does not require 
it and the course might be deemed incorrect. 

The extreme Republican resentment over the Judge's 
attitude was manifested by the extraordinary action 
taken by a Grand Jury of the Circuit Court in Georgia 
which stated in a presentment: "We cannot pass 
unnoticed the attempt of the Judiciary to defeat the 
intentions and salutary measures of our government, 
by issuing a mandamus and compelling an officer of 
the revenue to violate those measures. Sophistical 
or logical deductions made in justification of such con- 
duct are not satisfactory. We hope and trust such 
daring precipitancy will never, in future, be exercised 
by any of the Judges of the Courts of the United 
States" — a presentment "for improper interference 
with the Executive", so the papers stated. This 
condemnation drew from Judge Johnson another sturdy 
reply, December 15, 1808: "It is very far from cor- 
rect in fact that the Circuit Court had the least wish 
or idea of embarrassing the execution of the Embargo 
Laws. The single question before the Court was 
whether the law or the instructions of the Executive 
was to govern. If you are prepared, gentlemen, to 
waive the government of the laws and submit with- 
out repining to every errour or encroachment of the 
several Departments of government, avow it to 
your fellow citizens, and prevail on them to abolish 
the Constitution, or get into office a feeble and sub- 
missive Judiciary. For what cause are we now re- 
proached ? For interposing the authority of the laws 
in the protection of individual rights, of your rights 
and the rights of succeeding generations. If such is to 
be the reward of his discharge of a painful and invid- 
ious duty, so important to the security of those who 



338 THE SUPREME COURT 

censure us, small will be the inducement to discharge 
it with fidelity." x 

Meanwhile, acting upon Jefferson's directions trans- 
mitted in the Attorney-General's letter of July 15, 
the collectors of customs were disregarding Judge 
Johnson's decision. "The opinion has ever since been 
acted upon, in preference to the decision," said a Bal- 
timore paper. "This obstinacy and disregard of the 
Judiciary has been acquiesced in by the public. . . . 
Though this is a novelty in our country of the most 
serious and alarming tendency, it is not unsuitable to 
the various attempts which have been made to bring 
down the Judges to a dependent condition and to give 
the Executive an equal right of expounding the law and 
enforcing its exposition upon the officers who are sub- 
ordinate to it." There were, however, some collectors 
who were unwilling to take so extreme a step. "Mr. 
Gelston here (of New York), cautious as he is, has 
nerve and zeal and has made several doubtful seizures, 
for which he is sued," wrote Gallatin to Jefferson in 
July. "But we cannot expect that the collectors 
generally will risk all they are worth in doubtful cases ; 
and it results that, until Congress meets, we must de- 
pend entirely on force for checking this manner of vio- 
lating the laws." 2 Another judicial obstacle to the en- 

1 New York Commercial Advertiser, Feb. 1, 1809; American Daily Advertiser, 
Feb. 6, 1809; Savannah Republican, Dec. 20, 1808. 

A singular fact as to this controversy was that, on the question of law as to the 
power of the Circuit Court to issue a mandamus to a Federal official, Rodney was 
correct (though stating the wrong ground for his view) and Johnson was wrong; 
for, five years later, the Supreme Court in Mclntyre v. Wood (1813), 7 Cranch, 
504, decided that the Circuit Court had no such power to issue an original writ, 
as under the Judiciary Act it could only issue a writ "when necessary for the exer- 
cise of their jurisdiction." In this case, Johnson explained that he issued the writ 
with the acquiescence of the collector; but of course consent cannot give juris- 
diction. See as to this case, Jurisdiction in Mandamus in United States Courts, 
by Glendower Evans, Amer. Law Rev. (1885), XIX. See also Marshall, III, 154, note. 

2 Works of Albert Gallatin (1879), I, letters of Gallatin, July 29, Aug! 6, 1808, 
letter of Jefferson, Oct. 25, 1808, letter of Gallatin to Giles, Nov. 24, 1808. 

Gallatin wrote to Jefferson, Nov. 8, 1808: "It is necessary to examine what 



JUDGE JOHNSON AND THE EMBARGO 339 

forcement of the law now arose. "A new attempt is 
also made to prevent detention through the medium 
of State Courts, which you will find stated in the 
enclosed letter from the collector of Newport," wrote 
Gallatin to Jefferson. "I have in my answer directed 
him to pay no obedience to such efforts to defeat the 
law, as the State Courts have no shadow of juris- 
diction in such cases. Still this increases our diffi- 
culties." To these letters, Jefferson replied that a 
bill ought to be introduced in Congress making the 
discretion of the collector expressly subject to Presi- 
dential instruction, and restricting the issue of man- 
damus. Accordingly, Gallatin wrote to Senator William 
B. Giles, as soon as Congress convened, explaining the 
difficulties of enforcement of the Embargo under the 
existing law and suggesting the legislation desired by 
the President. More cautious than Jefferson, however, 
he expressly admitted the correctness of Judge Johnson's 
view of the law, for he stated that the Executive in- 
structions could now be given "only as opinion and 
operate as a recommendation and not as an order"; 
and he continued: "On the subject of mandamus, 
I will only observe that in the only instance which has 
taken place, the Court, supposing they had jurisdiction, 
could not, from the manner in which the question was 
brought before them, have decided otherwise than they 
did ; but it is desirable that the question of jurisdiction, 
as it relates either to the Courts in which the power 
ought to be vested or to the cases to which it should 
extend, should be precisely defined by law." On 
December 12, 1808, Giles introduced in the Senate an 
Enforcement Bill conforming to the President's de- 
sires, but omitting any changes in the Judiciary Act 

provision may be introduced in an Judiciary Act which will protect our laws and 
collectors against encroachments of State officers." 



340 THE SUPREME COURT 

relating to the issue of mandamus. At the same time, 
he took occasion to express his views of the Federal 
Judiciary, with especial reference to Chief Justice 
Marshall and to Judge Johnson. 1 "My respect for 
judicial proceedings is materially impaired," he said. 
"Latterly, in some instances, the callous insensibility 
to extrinsic objects, which, in times past, was thought 
the most honorable trait in the character of an up- 
right Judge, is now, by some Courts, entirely dis- 
respected. . . . When Judges so far forget the true 
character and dignity of their stations, judicial pro- 
ceedings cannot long preserve the respect heretofore 
attached to them." He returned to his attack of the 
previous year on Marshall's conduct of the Burr trial, 
in the following bitter words: "You have seen your 
Judiciary publicly held up to the world as a spectacle 
of disgrace. You have seen a jury sworn to try an 
issue in a criminal case and excluded from the privi- 
lege of hearing the most material evidence upon which 
the issue depended. You have seen treason go un- 
punished . . . the painful mortification of beholding 
the most atrocious treason stalking unpunished through 
the land, triumphing in a security afforded, it is feared, 
through the hostile propensities of the Judge against 
his own Government, or at least against the Adminis- 
tration of his own Government." To this unmerited 
and unjust assault, Senator James Hillhouse of Con- 
necticut, who was one of the leaders in denunciation 
of the Embargo Act and who was himself refusing to 
accept a decision upholding its constitutionality re- 
cently made by a Federalist Judge, replied in defense 
of the Judges. He regretted that Giles "should have 
felt himself at liberty to travel out of his way to cast 
reproach on the Judiciary. The Judges, by a faithful 

1 10tk Cong., 2d Sess., speeches of Giles and Hillhouse, Dec. 21, 1808. 



JUDGE JOHNSON AND THE EMBARGO 341 

discharge of their duty (sometimes being obliged to 
withstand popular error, and sometimes to interpose 
themselves between a defenceless individual and Execu- 
tive power), are exposed to their full share of oppro- 
brium." He denied that the acquittal of Burr was due 
"to any indisposition in the Judge to do his duty" ; and 
said that, on the contrary, the Judge "manifested great 
integrity and firmness in adhering to the established 
rules of proceeding in criminal trials, which are the 
great shield of innocence against oppression; and in 
giving a fair trial to a political opponent, against whom 
the popular current ran high, and whose prosecution 
was aided by Executive influence and power." 

Meanwhile, before the introduction of this new 
Enforcement Law in December, 1808, the legal status 
of the Embargo Act had been settled in the Courts. 
By a singular stroke of irony, Jefferson, who had for 
the past five years denounced the Federal Judiciary 
and their exercise of power, now saw his own pet 
legislative measure and his own authority upheld in 
the fullest measure by one of these hated Federal 
Judges, and by a Judge who was a member of the Fed- 
eralist Party. In this instance judicial independence 
worked in favor of the President. 

Ever since the passage of the first Embargo Act, 
the chief weapon employed against it in New England 
had been a claim as to its unconstitutionality. This 
contention received great support from the public 
position taken by Theophilus Parsons, the Federalist 
Chief Justice of the Supreme Judicial Court of Massa- 
chusetts. "There is in Massachusetts," wrote John 
Quincy Adams to Ezekiel Bacon (a Congressman from 
that State), "a Judiciary of which you may think what 
I cannot say." " It was with a repugnance I could not 
express," he wrote later, "that I saw a desperate party 



342 THE SUPREME COURT 

leader in the Chief Justice of the Commonwealth. It 
was from him alone that the pretence of the unconstitu- 
tionality of the Embargo derived any countenance. 
Even Mr. Pickering had not ventured to start that idea. 
It was the stimulus to the people of forcible resistance 
against it. It was a gigantic stride towards a dissolu- 
tion of the Union. Mr. Parsons not only broached the 
opinion, but very extrajudicially made no secret of it, 
upon the Exchange and at insurance offices." * 

The Republicans themselves were placed in somewhat 
of a dilemma in viewing the prospect of a judicial de- 
cision upon the question. The Embargo Law was a 
far more extreme exercise of Congressional power than 
either Republicans or any one else had believed possi- 
ble under the Constitution. Whatever else was doubt- 
ful, no one could doubt that, under the doctrine of State- 
Rights and the rules of strict construction, such a law 
was unconstitutional ; and only by the widest theories of 
liberal construction could its validity be sustained. 
The arguments in its favor were arguments which 
hitherto had been regarded as fatal to public liberty and 
to State sovereignty. 2 Many Republicans were, there- 

1 J. Q. Adams Writings, III, letter to E. Bacon, Nov. 17, 1808: "The Embargo 
is unfortunately one of those measures upon which the two public authorities may 
be brought in collision with each other, and that the party has been laboring with 
unwearied industry to produce that effect, the proceedings of our Legislature, the 
instigations to resistance against the embargo laws on the pretence of their uncon- 
stitutionality, the countenance given to this paltry pretence by a State Judge 
(Parsons) and the connection between the extra-judicial opinions and the attempts 
at forcible resistance, which have already been made, and with the experiment 
upon the District Court at Salem, afford the evidence which the most purblind 
observer cannot but observe." See also Documents Relating to New England Fed- 
eralism (1877), by Henry Adams, 223, letter of Adams to the Citizens of the 
United States in 1829; letter to Bacon, Dec. 21, 1808. Reminiscences of Samuel 
Dexter (1857), by " Sigma ", 84 : "In those feverish days, the office of the Suffolk 
Insurance Company was more noted for its daily political harangues than for its 
semi-annual dividends. There, the prominent leaders of the Federal party were 
in the habit of dropping in and talking over the topics of the day. . . . The voice 
of Mr. Parsons, then Chief Justice, was often heard on these conventicles,- not in 
his official capacity, of course, but as the Magnus Apollo of the Assembly." 

2 History of the United States (1890), by Henry Adams, IV, 263 et seq. 



JUDGE JOHNSON AND THE EMBARGO 343 

fore, adverse to allowing the Federal Courts to pass upon 
the question, if it could be avoided. 1 The Federalists, 
while convinced of the unconstitutionality of the law, 
had practically determined to resist its enforcement, 
regardless of judicial decision. It was amid such con- 
ditions that the constitutional question arose and was 
argued for the first time, in the United States District 
Court for the District of Massachusetts before Judge 
John Davis sitting at Salem, in the case of United States 
v. Brigantine William. From the standpoint of the 
Republicans who distrusted the Judiciary, the case 
could have been presented before no more unfavorable 
tribunal. Judge Davis was a man sixty-five years 
of age ; he had been United States Attorney under 
President Adams and had been appointed by the 
latter as District Judge in 1801. He was a strong 
Federalist in politics ; his personal friends and his 
surroundings were Federalist; his judicial associates 
on the Massachusetts Bench were Federalist. The 
leading Federalist paper in Boston rejoiced that 
"at length a most serious and solemn question has 
arisen under the Embargo Law and is brought into 
discussion before a Judicature competent to pro- 
nounce a decision." Another grew emotional over the 
prospect, saying : "From the weight of talents engaged 
the arguments will attract a high degree of public in- 
terest. ... A more important crisis has seldom, if ever, 
existed in this country. Should the Embargo Laws be 
admitted to be constitutional, farewell to the freedom of 

1 Later, the New York Commercial Advertiser, March 3, 1809, quoted the Tren- 
ton Federalist as saying : "The Democrats publish in their papers, that if any citizen 
is so daring as to question the constitutionality of any of the provisions of the late 
forcing embargo Act of Congress, by appealing to the Judiciary, they ought not to 
keep their heads on their shoulders one hour." The Independent Chronicle, Sept. 
26, 1808 : " Common sense must dictate that the Judge has no right to decide on so 
important a question." See ibid., Dec. 15, 1808, speaking- of "the arrogance of 
lawyers in assuming to stop the process of a Court by a plea that the law is uncon- 
stitutional." 



344 THE SUPREME COURT 

commerce. We shall see it no more, until by a new con- 
stitution, we have secured our constitutional privileges 
more fully than mere words can do. Should the Law 
on due examination be declared unconstitutional, then 
may we soon be once more free, and every man at 
liberty to judge for himself of the risks of the sea and 
despatch his vessel if he should think proper. We trust 
that at least the Judge and Jury will not be afraid to do 
their duty, let it offend whomsoever it may." * In favor 
of the Embargo, there appeared Joseph Story, then a 
young man of twenty -nine years (who three years later 
was to be appointed upon the Supreme Bench) , Francis 
Blake and George Blake, and against the Law, William 
Prescott and Samuel Dexter (aided by Christopher 
Gore). The weight of legal talent was clearly against 
the Government. It is interesting to note that Joseph 
Story supported the constitutionality of the Embargo, 
though, a year later, he favored its repeal in Congress, 
and many years later, after he had become wholly con- 
verted to Marshall's broad views of the Constitution, he 
wrote that: "I have ever considered the Embargo a 
measure which went to the utmost limits of construc- 
tive power under the Constitution ; it stands on the ex- 
treme verge of the Constitution." 2 The argument was 
thus described by a Republican paper : "The deep inter- 
est the public felt on the question excited great attention, 
and the Court-house, for several days while the question 
was discussed, was crowded. Mr. Story opened the 
cause in behalf of the Government, and Messrs. Prescott 
and Dexter assisted by a number of the most eminent 
lawyers at the Bar argued the unconstitutionality of the 
law at great length, with much ingenuity and more 
sophistry. They were answered on the side of the 

1 Columbian Centinel, Sept. 21, 1808; Boston Gazette, Sept. 12, 19, 1808-, Na- 
tional Intelligencer, Sept. 28, 1803; Savannah Republican, Oct. 13, 1808. 

2 Story, I, 185, autobiographical sketch written in 1831. 



JUDGE JOHNSON AND THE EMBARGO 345 

Government by Mr. Francis Blake, in a strain of 
eloquence highly gratifying, and by his brother Mr. 
George Blake, District Attorney, with a strength and 
pertinency of argument which do him great honor." 
Another spoke of the "full and fair discussion after the 
most scientific and ingenious attempts to prove the un- 
constitutionality of the law by Prescott, and Dexter, 
assisted by Christopher Gore. The discussion was con- 
cluded by George Blake in a strain of dignified and manly 
eloquence which reflects on him the highest honor. The 
constitutionality of the law was clearly pointed out, 
its policy illustrated with energy and argument and its 
eventual beneficial effects portrayed in strong and lively 
color. During the whole of this interesting debate on 
the fundamental principles of our government, the 
Court-house was thronged with people of respectability 
from Salem and the towns in the vicinity." l 

On October 3, 1808, a week after the argument, Judge 
Davis rendered his opinion, sustaining in the broadest 
terms the legal validity of the statute, and construing 
the constitutional powers of Congress in respect to it 
as broadly as Marshall himself at his zenith could have 
done. Not only did he uphold the Embargo as a reg- 
ulation of commerce, but he held it valid under the war 
power as a preparation for war, and under the "nec- 
essary and proper" clause as appropriate to carrying out 
the purposes of the Constitution and protecting the in- 
herent sovereignty of the Nation. 2 With extraordinary 

1 Essex Register (Salem, Mass.), Oct. 5, 1808; Independent Chronicle, Oct. 6, 
1808; Richmond Enquirer, Oct. 25, 1808; National Intelligencer, Oct. 10, 12, 1808. 
See also Columbian Centinel, Sept. 24, 1808; American Daily Advertiser, Sept. 28, 
1808; Charleston Courier, Oct. 12, 1808. "During this long discussion, the hall 
was crowded and the anxious assembly listened with the most profound attention to 
the arguments in which great knowledge, ingenuity and eloquence were displayed." 

2 United States v. Brigantine William, HaWs American Law Journal (1808), II, 
Federal Cases No. 16700. The curious fact may be noted that though Judge 
Davis devoted a large part of his opinion to the question whether the Court had 
power to pass upon the constitutionality of the Act of Congress, and cited several 



346 THE SUPREME COURT 

inconsistency, the Republicans hailed the decision with 
glee. Descriptions of the argument and of the decision 
were published in their papers all over the country. 
"Judge Davis delivered a decisive opinion in favor of 
the constitutionality of the Embargo Law. His opin- 
ion appeared to be the result of deep investigation and 
sound, deliberate reflection — it w r as luminous, learned 
and eloquent beyond anything we recollect of the kind," 
said one; and another said: "Judge Davis, after a 
very learned and elaborate decree, pronounced a clear 
and decided opinion in favor of the constitutionality 
of the Acts. In the course of this decree, the Judge ex- 
pressed in the fullest manner his concurrence with the 
counsel for the Government in all the leading po- 
sitions, and seemed also to coincide with them in senti- 
ments, that in none but flagrant cases, and where a law 
of Congress was clearly repugnant to some express pro- 
vision of the Constitution would it be competent for 
a Court to decide upon its validity." l Another said 

Federal Court authorities, his attention was not called to the case of Marbury v. 
Madison, decided five years before, until after he had rendered his decision. 

See Reminiscences of Samuel Dexter (1857), by " Sigma " : " After Judge Davis 
had decided that the law was constitutional . . . Mr. Dexter persisted in arguing 
the question of constitutionality to the jury, notwithstanding the remonstrances 
of the Bench. At length, Judge Davis, under some excitement, and after repeated 
admonitions, said to Mr. Dexter, that if he again attempted to raise that question 
to the jury, he should feel it his duty to commit him for contempt of Court. A 
solemn pause ensued, and all eyes were turned towards Mr. Dexter. With great 
calmness of voice and manner, he requested a postponement of the cause until 
the following morning. The Judge assented. ... On the following morning, there 
was a full attendance of persons, anxious to witness the result of this extraordinary 

collision between the advocate and the Judge Mr. Dexter rose, and facing 

the Bench, commenced his remarks by stating that he had slept poorly and had 
passed a night of great anxiety. He had reflected very solemnly upon the occur- 
rence of yesterday. . . . No man cherished a higher respect for the legitimate 
authority of these tribunals before which he was called to practice his profession ; 
but he entertained no less respect for his moral obligations to his client. . . . He 
had arrived at the clear conviction that it was his duty to argue the constitutional 
question to the jury . . . , and that he should proceed to do so, regardless of 
any consequences." 

1 Essex Register, Oct. 5, 1808; Independent Chronicle, Oct. 6, 1808; Richmond 
Enquirer, Oct. 25, 1808; National Aegis, Oct. 4, 1808; Savannah Republican, 
Oct. 22, 1808. 



JUDGE JOHNSON AND THE EMBARGO 347 

that this solemn decision was "a source of mortification 
to the friends of Britain. They had indulged the vain ex- 
pectation of making these high judicial officers the tool 
of a desperate faction. They were indeed justified by 
past events. They had much reason to hope that mag- 
istrates of inferior jurisdiction could be bent to vile pur- 
poses, when they had witnessed the success of their arts 
with those of superior authority. Could they have pro- 
cured a decision that the Embargo was unconstitution- 
ally imposed, they would have thought their triumph 
complete — Government would have been set at defiance 
— its regular officers resisted, and a state of anarchy and 
bloodshed ensued. The Union would have been rent 
asunder. Federalism would have had full scope for 
a display of its disorganizing and turbulent disposition. 
Let us thank Heaven, then, that their aims have met 
this signal defeat — that we have escaped the calamities 
inseparable from the clashing of the Legislative and Ju- 
dicial Departments. Republicans deny the right of 
the United States Courts to judge upon the question. 
Since, however, they have thus far decided correctly, 
it may be rather beneficial than injurious. But we will 
never allow that any legal precedent has been furnished 
for further interference." 

The Republicans also praised the courage of the 
Judge, and with much reason, for his decision undoubt- 
edly was one of the most striking illustrations of judi- 
cial impartiality rising above the influence of partisan 
influence to be found in the history of the law; and the 
following tribute from his political opponents was well 
deserved: "To Judge Davis much credit is certainly 
due, not for doing his duty, but this we do say, that 
when the Magistrate rises superior to the rebellious 
views of his party and adheres to the Constitution and 
the law, the temple of justice becomes bold and the 



348 THE SUPREME COURT 

rights of the people are secure. 5 ' That Judge Davis 
was subjected to much influence to render a contrary 
decision was stated by John Quincy Adams, who wrote, 
a few months later, to William B. Giles: 1 "You know 
that the doctrine has been broached here that the Em- 
bargo Laws were unconstitutional, and as such not en- 
titled to submission. The history of this doctrine, and 
the manner in which it was propagated until the decision 
of the District Judge at Salem, is perhaps not fully known 
to y o u . While you have been candidly informed of the reg- 
ular gradation through petition, remonstrance and legis- 
lative resolutions to insurrection and rebellion against 
the Union which are here avowed and recommended, you 
have not been told how important a step in the progress a 
judicial decision against the Embargo Laws was in- 
tended to be. You have not heard what means were used 
and by whom to bias that decision, nor how much dis- 
appointment has followed from that honest firmness 
and incorruptible integrity of our District Judge. 
These are things of which little will be said, but whoever 
traces the real history of our advance towards resistance 
will not forget the judicial battery which has been at- 
tempted to be brought into action, nor fail to perceive 
the effect with which it would have operated if it could 
have been brought to bear. In speaking of the firmness 
and integrity of the District Judge and of the means used 
to bias his mind, I do not hint at any direct attempt upon 
his honesty, but to a sort of influence which was cer- 
tainly used, and which must have had its sway upon his 
judgment, had not his good sense and his spirit been 
superior to every consideration of party management." 
The Federalists received the decision with the utmost 
surprise and dismay, and their press proceeded to ignore 
it absolutely. Their attitude was thus commented on 

1 J. Q. Adams Writings, III, letter of Dec. 10, 1808. 



JUDGE JOHNSON AND THE EMBARGO 349 

by their opponents: "While the Federal papers (es- 
pecially the Centinel) have been so alert in publishing 
British news and abuse of the President, they have been 
equally careful not to inform their citizens of the dis- 
cussion of the Judge in Salem on the constitutionality 
of the Embargo. The Essex Junto now say — the Judge 
has not nerve enough for their purposes. Though we 
deny the right of the Judge to act on this question, yet 
we are glad to find he has mortified the Junto by his 
decree," wrote one, and another said: "It puzzles the 
opposition how to make an apology to their friends for 
the decision of the District Judge. It will not answer 
to impeach his talents or his virtues. According to 
the new doctrine, he cannot, like Mr. Adams, be touched 
in his office. At length, with the usual effrontery, after 
having made the question of the greatest consequence, 
it is thought best to laugh it'out of sight as of no impor- 
tance. We hope to hear no more of the unconstitution- 
ality of the Embargo." 1 Further legal struggle against 
the Law evidently appeared useless to the Federalists, 
and their defeated counsel did not venture to appeal to 
the Supreme Court. Samuel Dexter, strong as were his 
Federalist convictions, was also one of the foremost 
lawyers at the Federal Bar in Washington, and he knew 
well that Chief Justice Marshall and his three Federalist 
Associates were unlikely to take any narrower view of 
constitutional powers than Judge Davis had done. 
While the Court had as yet rendered no decision on the 
Federal power to regulate commerce, it had given the 

1 Independent Chronicle, Oct. 6, 1808 ; Essex Register, Oct. 12, 1808. The Fed- 
eralist Boston Repertory, Oct. 7, 1808, said: "The Chronicle boasts of the decision 
. . . and we are not disposed to question its propriety," but it said it was not 
particularly interested as it was confident that the Embargo was to be repealed. 

Henry Adams in his History of the United States, IV, 268 et seq., says that Davis' 
opinion was printed in every newspaper. This seems to be a mistake. Many of 
the Republican papers printed it; the Federalist papers, almost as a body, either 
made no mention of it or gave to it a very brief reference. See Boston Gazette, Oct. 
6, 1808. / 



350 THE SUPREME COURT 

broadest possible scope to the "necessary and proper" 
clause of the Constitution in United States v. Fisher, 
only four years before; and Dexter had no hope of 
persuading the Court to relax its views on the Em- 
bargo for the benefit of the Federalist Party. 1 It would 
appear, however, that Chief Justice Marshall himself 
was reluctant to express his views at this time. For, 
while the Federal Judges in Virginia in 1800 had never 
hesitated to charge the Grand Juries with respect to the 
constitutionality of the Alien and Sedition Laws, they 
now preserved a discreet silence as to the Embargo — 
so much so that a correspondent of the Richmond En- 
quiver, sl member of the Grand Jury, wrote that "not- 
withstanding the silence of the Court on the violations 
of the Embargo Laws, the Grand Jury are determined 
to do their duty." 2 Though many cases involving the 
question were appealed to the Supreme Court in the 
subsequent years, the constitutional question was never 
presented. In a case in the Circuit Court in New York, 
in 1810, Judge Brockholst Livingston stated that the 
point had been raised, but as it had not been argued by 
counsel, "the Court will not take upon itself the high 
and delicate office of pronouncing any law of the United 
States unconstitutional, unless the case were so clearly 
so that it were scarcely possible for any two men to 
differ in sentiment. . . . This is so far from being the 
case with these laws, that it is in the knowledge of the 
Court and matter of general notoriety, that many con- 
demnations have taken place under them ; and although 
this question has been made and fully argued in some of 
the inferior tribunals of the United States, yet the Su- 

1 Henry Adams in his History of the United States said as to United States v. Fisher: 
"Constructive power could hardly go further, and the habit of mind which led to 
such a conclusion would hardly shrink from sustaining Judge Davis' law." See 
also Letter of John Quincy Adams to the Citizens of the United States in 1829, 
in Documents Relating to New England Federalism (1877), by Henry Adams. 

2 Richmond Enquirer, Dec. 2. 1808. 



JUDGE JOHNSON AND THE EMBARGO 351 

preme Court, although many cases have gone there on 
appeal, has never been called on to say that they were 
repugnant to the Constitution." Fourteen years later, 
however, the question had become so settled by general 
acceptance that Marshall in Gibbons v. Ogden was able 
to speak of "the universally acknowledged power of the 
Government to impose embargoes." 1 

While refusing to appeal the decision, the Federalists 
proceeded systematically to deny its correctness and to 
resist its application in subsequent criminal cases in 
the United States District Court. "Already, notwith- 
standing the decision of the District Judge on the con- 
stitutionality of the existing Law, the juries will not 
convict for violations of them," wrote Adams in Decem- 
ber; and again: "There may be impediments to exe- 
cution (of the Laws) besides those known to the Consti- 
tution. . . . The District Court, after sitting seven 
or eight weeks and trying upwards of 40 cases, has at 
length adjourned. Not one instance has occurred of a 
conviction by jury ; and finally one of the jurymen is 
said to have declared that he never would agree to con- 
vict any person under these Laws, whatever might be 
the facts. The Judge has been firm and decided in 
support of the Laws as far as his authority extended." 2 

Two other judicial obstacles to the successful opera- 
tion of the Embargo appeared at this time, due to the 
ruling of Judges of the Court sitting on Circuit, — one 
by Judge Brockholst Livingston, a Republican, the 
other by Chief Justice Marshall. The first arose in 
connection with the seriously rebellious conditions 
prevalent in Vermont. For many months, there had 
been countless violations of the Embargo in the smug- 

1 Sloop Elizabeth, 1 Paine, 10, in 1810; Gibbons v. Ogden, 9 Wheat. 191, in 1824 ; 
see also United States v. Marigold, 9 How. 560, in 1850. 

2 J. Q. Adams Writings, III, letters to Ezekiel Bacon, Dec. 21, 1808, to W. B. 
Giles, Dec. 20, 1808, Jan. 16, 1809. 



352 THE SUPREME COURT 

gling of potash, tea and many other articles across 
the Canadian boundary line. Both the State troops 
and the Regular Army had been called upon to aid 
in enforcing the law. As early as May, the Presi- 
dent had proclaimed a part of Vermont to be in "a 
state of insurrection." Murders of revenue officers and 
other acts of violence had been increasing in number, 
culminating in September in the murder of three of 
the State militia. "We predicted that such events 
must soon succeed the treasonable language of the 
Northern Federalists and Federalist Memorials. The 
tories of the day are daring and insolent. . . . They 
are advocating British insults and murders and domes- 
tic insurrection, and in every corner. We all know it, 
we see it, we hear it, every day, and read it in 
every Federal print," said a Vermont paper. 1 On 
directions from Attorney-General Rodney, in an effort 
to impress upon the citizens the seriousness of the 
situation, the smugglers and murderers of the militia- 
men had been indicted for treason, and they had 
been tried in the United States Circuit Court before 
Judge Livingston and District Judge Elijah Paine 
The Court held, however, that such an indictment 
could not be sustained, and that "no single act in 
opposition to or in evasion of a law, however violent 
or flagrant when the object is private gain, can be con- 
strued into levying war against the United States"; 
and Judge Livingston said in charging the jury: "If 
the prisoner, among others, was hired for the purpose 

1 Bennington World, quoted in Savannah Republican, Sept. 22, 1808. This re- 
bellious condition in Vermont has been little noticed in the histories of the times. 
See for interesting descriptions, letters and editorials in 1808, from both political 
standpoints, Boston Repertory, June 10, July 22, Aug. 26, 30; Boston Gazette, June 
23, July 21, containing letter from Burlington denying the existence of any "rebel- 
lion"; American Daily Advertiser, May 18, 29, June 21, 23; National Intelligencer, 
June 27, Sept. 23 ; National Aegis, Sept. 21 ; Savannah Republican, Sept. 3, 22, 27. 
See also Gallatin, I, letters to Jefferson, May 27, Aug. 15, Sept. 9. 



JUDGE JOHNSON AND THE EMBARGO 353 

of evading the Embargo Laws, only in this instance, and 
for his own private emolument, although it may have 
been part of the plan to use violence, and force were 
actually employed against the collector or his agents 
to accomplish this object, but that this formed no 
link in a conspiracy to resist or impede the operation 
of these Laws within the district generally as far as 
their means enabled them, . . . then the prisoner is not 
guilty of the crime of levying war. ... It is the in- 
tention with which resistance to the law is made, not 
the opposition itself, that forms the criterion ; other- 
wise every wilful opposition to a statute would neces- 
sarily be a levying of war." 1 As a result of this case, 
indictments for treason became an impossible method 
of dealing with Embargo violations, and it evoked again 
a demand from the Republican press and from Repub- 
lican Congressmen for further legislation expanding the 
crime of treason, or making seditious acts criminal. 

The success of the Embargo was further impeded 
by a decision of Chief Justice Marshall in the Circuit 
Court in Virginia. Amongst the measures adopted 
by those States favoring the Embargo had been the 
enactment by Virginia and Georgia of stay -laws, in 
favor of debtors whose business was interfered with 
by its operation, postponing the collection of legal 
judgments by execution until six months after the 
repeal of the Embargo. 2 The question of the oper- 

1 United States v. Hoxie, 1 Paine, 265, Federal Cases No. 15407. See accounts 
of the case in Essex Register, Sept. 16, 1808, quoting Bennington World (Vt.) ; 
Charleston Courier, Dec. 2, 8, 1808 ; Savannah Republican, Sept. 22, 27, 1808. The 
National Intelligencer, Oct. 26, Nov. 28, said : "Judge Livingston then rose, and in 
a clear, concise, energetic and profoundly eloquent address to the jury expounded 
the law and defined the crime of treason." 

2 Savannah Republican, April 20, 1808 ; Baltimore Federal Gazette, June 4, 1808, 
giving account of the Georgia stay-law ; Connecticut Courant, June 8, 1808, letter 
from Savannah, Ga., May 5: "The Legislature of this State have just passed a 
law to suspend all judgments during the Embargo and for six months after it is 
raised. It will be in vain to think of making any collections here until this law 
is repealed." Ibid., July 6, quoting a Virginia Republican paper: "The Execu- 

VOL. I — 12 



354 THE SUPREME COURT 

ation of the Virginia statute arose in the United 
States Circuit Court before Chief Justice Marshall, 
and he held, without passing on the question of its 
validity under the Constitution, that such a State 
law relative to execution was not binding on the pro- 
cesses of the Federal Courts, the State having no 
jurisdiction in such matters. 1 The result of this de- 
cision was, as was pointed out in Congressional debates 
on the case, to give to citizens of other States who 
could sue in the Federal Courts an advantage over 
citizens of Virginia suing in the State Courts, and to 
enable the law to be evaded by assignment of judg- 
ment to citizens of other States. Thus the purpose 
of the law to assist the operation of the Embargo was 
largely neutralized. As an illustration of the extent 
to which some of the State Courts in the South were 
willing to go in lightening the operation of the Em- 
bargo, it may be noted that Judge Charlton in the 
Superior Court in Georgia, even before the enactment 
of the stay -law, had issued an injunction against a 
sale ©n execution, because of the pecuniary embarrass- 
ment caused to the debtor by the Embargo Acts. 
This extraordinary decree he based on even more 
extraordinary grounds, saying: "The Nation, in order 
to redress itself for outrages on its sacred rights, im- 
poses distresses on its own citizens. I shall, therefore, 
bottom my decision upon the abstract grounds; that 
cases of this description involve hardship and op- 
pression, that they are against equity and conscience, 

tive of Virginia will do well to call the Legislature together to pursue the patriotic 
example of the Georgia Legislature. We mean that law process should be stopped, 
as the only means of saving our Republican cause. ... It would be prudent in 
the Supreme Executive of the United States to convene Congress in order to the 
passage of a law which will suspend all legal process during the existence of the 
Embargo." 

1 See 10th Cong., 2d Sess., 1597-1598, debate, Feb. 28, 1809, on the bill to-provide 
"that the laws of the several States shall be the rules of proceedings in all judicial 
proceedings in the Courts of the United States." The bill failed of passage. 



JUDGE JOHNSON AND THE EMBARGO 355 

that they are promotive of injury to the public, that 
they enable monied men to accumulate usurious 
wealth, and that they tend to convert a just and salu- 
tary measure of the Government into an engine of 
political disaffection, through the medium of the policy 
of distressed and persecuted debtors." * Later, after 
the passage of the Georgia stay-law Judge Charlton 
sustained its validity, holding that it was not an 
impairment of obligation of contract under the Con- 
stitution, in spite of the fact that that clause had been 
adopted for the express purpose of preventing the 
occurrence of the evils produced by the State stay- 
laws between 1783 and 1787. 2 One further decision 
of the Federal Courts embarrassing the operation of 
the Embargo may be noted — that of Chief Justice 
Marshall in United States v. William Smith, in which 
criminal indictments for violation of one of the Em- 
bargo Acts were quashed. Marshall ruled that, as the 
statute contained no express criminal penalties, and as 
the provisions in it for forfeitures and civil fines must 
be regarded as the exclusive remedies intended, the 
Court need not decide "whether an indictment can 

1 See opinion in Ex parte Paul Grimball, in American Daily Advertiser, June 18, 
1808; HalVs American Law Journal (1808), I, 183, and Ex parte Maxwell, decided 
April 8, 1808, in ibid. 

2 HalVs American Law Journal (1809), II, 93, opinion in Grimball v. Ross, Nov., 
1808. Only five years later the Supreme Court of Tennessee in a noble opinion 
in Crittenden v. Jones, held a similar State stay-law enacted during the War of 1812 
clearly unconstitutional, HalVs American Law Journal (1814), V, 520. 

The following dispatch from Savannah in the Boston Gazette, June 9, 1808, pre- 
sents an interesting commentary on the feeling aroused by the stay-law situa- 
tion: "We are informed that a resolution was intended to have been introduced 
in the Legislature on Monday, disqualifying all persons of the profession of the 
law from being members of the Legislature. This was considered as a retaliating 
measure on the present law-members for their unanimous opposition to the bill 
staying sales and suspending Courts." That there were, however, many who 
opposed these stay-laws is seen from the Savannah Republican, May 3, 1809, which 
contained a report of the Grand Jury of Chatham County complaining of the stay- 
laws as in direct violation of the Constitution and of the impolicy of those measures, 
saying : "Unfortunately the evil does not rest on the creator alone, but is reflected 
by our Sister States as a stain and reproach to us." 



356 THE SUPREME COURT 

be supported in this Court on common law principles." 
This decision disclosed a very singular defect existing 
in the four Embargo Acts of December 22, 1807, 
January 9, March 12, and April 25, 1808. It was not 
until the passage of the Enforcement Act of January 
9, 1809, that indictments could be obtained for vio- 
lation of the Embargo. 1 

It will be seen from the above summary that, in 
spite of Judge Davis' favorable opinion, the net result 
of the activities of the Federal Courts in connection 
with the Embargo had been to lessen rather than to 
heighten its effectiveness, and this fact served to con- 
firm still more strongly Jefferson's personal prejudice 
against those Courts. 

Before Congress met in December, 1808, and before 
Jefferson's new law for the enforcement of the Embargo 
was introduced, the situation in New England had 
become alarming. "I believe the Embargo cannot 
possibly be continued much longer without meeting 
direct and forcible resistance in this part of the coun- 
try," wrote John Quincy Adams in November. 'The 
people have been so long stimulated to this forcible re- 
sistance, and they have been so unequivocally led to ex- 
pect support from the State authorities in such resist- 
ance, that I do not think the temptation will be much 
longer withstood. If the law should be openly set at de- 
fiance and broken by direct violence under support 
from the State authorities, it is to be considered how 
the General Government will be able to carry it through. 
No doubt by military execution. But that will make 
civil war, the very point at which the tories are driving 
and in the event of which it may at least be conjec- 
tured that they have already secured British support 

1 See Richmond Enquirer, June 2, 6, 1809 ; Savannah Republican, June 13, 20, 
1809. See also Livingston, J., in Schooner Enterprise (1810), 1 Paine, 32. 



JUDGE JOHNSON AND THE EMBARGO 357 

and assistance." Joseph B. Varnum wrote from Wash- 
ington : "Many have supposed that Massachusetts 
was on the very verge of revolt. This conclusion has 
been drawn from the audacious paragraphs which 
appear daily in the public newspapers, the seditious 
resolutions of County Conventions, . . . the rebellious 
handbills circulated in Newburyport and above all the 
very extraordinary statements and principles con- 
tained in the instructions and recommendations to 
our members in Congress by the Senate and House of 
Representatives. But, sir, although an occurrence of 
this kind would be very much lamented generally 
and might paralyze the exertions of some individuals, 
the strong arm of the Nation would soon convince the 
deluded projectors of their mistake. Although the 
Federal party in Boston seemed somewhat paralyzed 
on the day of the date of your letter, I learn from 
another source that they were about to rally, and for 
that purpose had called a caucus of the Junto to be 
held the succeeding evening for giving a tone to future 
proceedings. . . . Those who are not for our country 
are against it ; and the time is fast approaching when 
they must, they will be designated." Joseph Story, 
then just elected to Congress, wrote early in January, 
1809: "If I may judge from the letters I have seen 
from the various districts of Massachusetts, it is a 
prevalent opinion there — and, in truth, many friends 
from the New England States write us — that there 
is great danger of resistance to the laws, and great 
probability that the Essex Junto have resolved to 
attempt a separation of the Eastern States from the 
Union"; and again: "I am sorry to perceive the 
spirit of disaffection in Massachusetts increasing to 
so high a degree; and I fear that it is stimulated by 
a desire in a very few ambitious men to dissolve the 



358 THE SUPREME COURT 

Union. I do believe that nothing would be so dis- 
astrous as such an event. With the destruction of 
the present confederacy would come the destruction 
of liberty. ... I am, from principle, a sincere lover of 
the Constitution of the United States and should de- 
plore, as the greatest possible calamity, the separation 
of the States." x 

Whether New England was in fact ready to resist 
by force, to the extent of separation from the Union, 
is an unsolved question in history. But that the 
private and public sentiments of many of its leading 
politicians were tending in this direction, and that many 
of its newspapers were advocating resistance and Nulli- 
fication cannot be doubted. New England had become 
the seat of the most extreme State-Rights doctrine. 
Every attack which Virginia had made, from 1798 to 
1800, upon the Alien and Sedition Laws was now re- 
echoed in Massachusetts and Connecticut. The most 
radical doctrines advanced in the Virginia-Kentucky 
Resolutions of 1798-1799 were adopted and strength- 
ened. Jefferson's own arguments as to the rights of a 
State and of the people to disregard unconstitutional 
laws were now turned against him. "Such laws cannot 
be regarded as laws; they have no force or obligation 
whatever ; men are bound to resist all unjust ex- 
tensions of power; the Constitution is a treaty of 
alliance and cooperation," wrote "Hampden" in the 

1 J. Q. Adams Writings, III, letter to E. Bacon, Nov. 17, 1808; William Eustis 
Papers MSS, letter of Dec. 5, 1808; Story, I, 174, 177, letters of Jan. 4, 9, 1809. 
Judge Richard Peters of Pennsylvania, a strong Federalist, wrote to Timothy 
Pickering, Dec. 3, 1809: "I confess I have been apprehensive; yet on the whole 
my confidence in the good sense and patriotism of the Eastern people predomi- 
nated over my fear. Many here were more alarmed on this score than I have 
been, conscious of the peculiar irritations and oppression produced in those of your 
section of the Union by the embargo and its attendant scourges. The conversa- 
tion at tables and public places at Boston held by men not of the mob, and the 
unjustifiable acts of the latter, as well as of those who would wish to be thus classi- 
fied, are and have been very unpleasant to those who wish the Constitution pre- 
served." Documents Relating to New England Federalism (1877), by Henry Adams. 



JUDGE JOHNSON AND THE EMBARGO 359 

Columbian Centinel; and replying to a Republican 
charge that the Federalists favored three things — a 
separation of the States, the reestablishment of the 
Adams Judiciary system, and an alliance with Great 
Britain — the Boston Gazette made the following startling 
admission: "We are ready for separation, if our in- 
dependence cannot be maintained without it. We 
know and feel our strength, and we will not have our 
rights destroyed by the mad schemes of a Virginia 
philosopher. We will enjoy our birthright, commerce" ; 
but it added, with more right on its side : "We do in- 
deed wish to see the Judiciary truly wise ... we wish 
to see it a shield of protection to our citizens of every 
class high and low, and we dread the encroachments 
of the Executive will, which sets aside the decision of 
Judges by his veto. We do indeed rely on a Judiciary 
which shall protect us from laws not warranted by the 
Constitution, and from tyrannical acts to enforce such 
laws. Give us this protection, and we care not how 
many, or how few Judges, or whether they are of one 
party or the other. We do not want alliance with 
England." 1 Timothy Pickering wrote: "How are 
the powers reserved to the States respectively, or to 



1 Columbian Centinel, Sept. 7, 10, 13, 1808; National Aegis, Sept. 28, 1808, refer- 
ring to articles by "Falkland": "Abominable essays insidiously preparing the 
people for a separation of the States"; Boston Gazette, Sept. 12, 1808; National 
Aegis, March 29, 1809, quoting Federalist newspapers, in reply to the defiance of 
the Gazette to show any articles advocating or threatening dissolution of the Union ; 
Savannah Republican, Nov. 15, 1808, quoting Independent Chronicle's summary, 
saying : "The foregoing extracts prove beyond the possibility of a doubt that there 
is a party existing in the country who are desirous to dissolve the National Con- 
federacy and to produce a separation of the States." 

On the other hand, George Cabot (one of the Essex Junto) wrote to Timothy 
Pickering, Oct. 5, 1808: "I have seen from several quarters letters expressing 
apprehensions that a disunion of the States is meditated by the Federalists. Some 
Federalists have been made to believe there was foundation for these insinuations, 
and the Democrats in the Southward are using this story to deter men from acting 
with the Federalists. I think, therefore, it will be well to pass some very decided 
resolutions, as to the importance of maintaining the Union inviolate under every 
trial, etc." Life and Letters of George Cabot (1877), by Henry Cabot Lodge. 



360 THE SUPREME COURT 

the people, to be maintained but by the respective 
States judging for themselves and putting their nega- 
tive on the usurpations of the General Government?" 1 
When Congress met, and the debate began on Jef- 
ferson's new Enforcement Law, introduced into the 
Senate by William B. Giles of Virginia, the utterances 
of New England's representatives became even more 
those of Nullification. The proposed statute, which 
vested collectors with power to refuse clearances at 
their discretion, provided new rights of search and 
seizure and authorized the President to use the army 
and navy, was attacked with the greatest violence. It 
was termed "the bowstring discipline of a Turkish des- 
potism", "fatal to the liberties of the people", "a 
hideous exhibition of military despotism", "a contest 
between liberty and tyranny", "subjected to the will 
of a military dictator." 2 "I consider this to be an act 
containing unconstitutional provisions, to which the 
people are not bound to submit and to which, in my 
opinion, they will not submit," said Senator James 
Hillhouse of Connecticut. "I do believe that it is not 
only justifiable but a paramount duty to resist, when- 
ever the oppression becomes intolerable, or unconsti- 
tutional measures which strike at the foundation of 
civil liberty are attempted to be enforced," said Sena- 
tor James Lloyd of Massachusetts. These utterances 
on the floor of the Senate were clearly those of sedition. 

1 Documents Relating to New England Federalism, letter of Pickering to Christopher 
Gore, Jan. 8, 1809. 

2 10th Cong., 2d Sess., speeches in the Senate of Chauncey Goodrich of Connec- 
ticut, Dec. 17, 1808, Lloyd of Massachusetts, Dec. 17, 1808, Feb. 21, 1809, Hill- 
house of Connecticut, Dec. 21, 1808, Jan. 7, 1809, Philip Reed of Maryland, Jan 
7, 1809. Senator James A. Bayard of Delaware said, Feb. 14, 1809: "We al 
know that the opposition to the Embargo in the Eastern States is not the opposi- 
tion of a political party or of a few discontented men, but the resistance of the 
people to a measure which they feel as oppressive and regard as ruinous." - 

See editorial in the American Citizen, Jan. 24, 1809, denouncing speeches of 
this kind and stating that there should be a law making them criminal. 



JUDGE JOHNSON AND THE EMBARGO 361 

In the House, similar radical sentiments were expressed. 1 
Among the most violent of the Federalist leaders was 
Josiah Quincy of Massachusetts. "You cannot en- 
force it for any important period of time longer," he 
said. "I mean not to intimate insurrection or open 
defiance . . . although it is impossible to foresee in 
what acts that oppression will finally terminate. . . . 
But there is another obstacle to a long and effectual 
continuance of this law — the doubt which hangs over 
its unconstitutionality." While admitting that it had 
already received the sanction of the Judiciary, and while 
stating that he honored that tribunal and revered the 
Judge, yet, he argued : "Continue these laws any time 
longer and it is very doubtful if you will have officers 
to execute them, juries to convict, or purchasers to 
bid for your confiscations." To such a plain advocacy 
of resistance, Ezekiel Bacon, a Republican Congress- 
man from Massachusetts, replied that he had not ex- 
pected to hear the law called unconstitutional, "after 
this question had once been submitted to the decision 
of that tribunal whose judgment that gentleman and 
his friends had been heretofore so much in the habit of 
respecting, and when after a solemn argument an opin- 
ion sanctioning their constitutionality had been given, 
upon great deliberation and advisement, by a Judge 
of great legal weight and personal respectability and 

1 10th Cong., 2d Sess., speeches of Quincy, Nov. 28, 29, Dec. 7, 29, 1808, Jan. 
25, 1809. John Quincy Adams agreed with Quincy that the law probably could 
not be executed longer and that the new law could not be executed at all. Writ- 
ing to Joseph Andrews, Dec. 15, 1808, he said : "It is my clear opinion that it will 
not be executed in this quarter of the Union by the ordinary process. Juries, 
Judges and militia will all fail to perform their parts and the bayonet will be as 
ineffectual to execute the law as the rest." To Ezekiel Bacon, he wrote, Dec. 21, 
1808: "The law will not be executed. It will be resisted under the organized 
sanction of State authority. Already, notwithstanding the decision of the District 
Judge on the constitutionality of the existing laws, the juries will not convict for 
violations against them. Constitutional objections will occur with tenfold greater 
force against the contemplated laws, and you will soon find State Judges under- 
taking to decide these questions in their way." 



362 THE SUPREME COURT 

whose opinion, from his known political character, could 
not be suspected of any party views." Particularly 
did he not expect to hear these attacks "from a quar- 
ter where we have been accustomed to hear the doctrine 
that the judicial power w T as supreme, controlling not 
only the exercise of individual rights but also the power 
of every other branch of the Government." Yet now 
we are threatened, he said, "by an appeal to the people 
over the heads of the whole Government." ! And 
Gurdon Mumford of New York also replied that he 
could not help regretting "when a gentleman from the 
Eastern country told us that our laws could not be 
executed. ... I trust in God that the laws can be 
executed, that there is patriotism enough to insure 
the execution. ... If any portion of the people should 
attempt to prevent the execution of the laws, I think 
there is power enough to put them down." To this, 
Quincy retorted that he had not threatened any appeal 
to the people over the heads of the whole Government 
or forcible resistance. But a month later, he openly 
announced that resistance might be the only remedy : 
" New England is in a state of excitement under the oper- 
ation of the Embargo Laws — Laws which some of the 
wisest men and best patriots in the country deem un- 
constitutional, and so much so that they cannot submit 
to them. . . . Suppose it to be the case that this House 
shall ever pass an unconstitutional law. What must 
be the course of the people ? They can pursue no other 
mode than a constitutional remonstrance ; and if that 
fails, they have no other resource than a constitutional 
resistance. . . . When a law is passed by which in the 
opinion of the people their interests are entirely de- 
stroyed, the law cannot be enforced." Such a doc- 

1 Speeches of Bacon, Nov. 29, Dec. 7, 30, 1808, Jan. 20, 25, 1809, Mumford, 
Dec. 3, 1808, George W. Campbell of Tennessee, Dec. 6, 1808. 



JUDGE JOHNSON AND THE EMBARGO 363 

trine was of course a plain denial of the supremacy of 
the Courts, and was denounced as such by Quincy's 
Republican opponents, both in Congress and in the 
press. "Mark the confession," said the National Aegis. 
"This same point has always been maintained by Re- 
publicans and strenuously controverted by Federalists. 
How often have they told us that the Judiciary had an 
inalienable prerogative to judge upon the constitution- 
ality of legislative acts. How often have the hosts of 
Federalist lawyers endeavored to sanction it by their 
opinions ! How eagerly did they press this subject at 
the late Court in Salem ; and now we are assured by 
this great constitutional organ that all these pretences 
were false and that the Judges have no right to say 
whether or not the Embargo is constitutional. This 
much for consistency !" l 

Other Congressmen were even more explicit than 
Quincy in asserting the absolute right of the State to 
judge of the constitutionality of the law and to refuse 
to obey its unlawful provisions. In support of their 
contention, they expressly cited the most extreme of 
the Virginia-Kentucky Resolutions of 1798-1799 and 
the action of Virginia in relation to the Sedition Act. 2 
"Why should not Massachusetts take the same stand, 
when she thinks herself about to be destroyed? Hu- 
man nature is the same throughout the United States," 
said Barent Gardenier of New York ; and Samuel W. 
Dana of Connecticut advocated the following extreme, 
almost seditious, extension of the State-Rights doc- 

1 National Aegis, quoted in Essex Register, Dec. 17, 1808; Aurora, Dec. 20, 
1808. The Independent Chronicle, March 13, 1809, said: "The Federalists hereto- 
fore considered the Judiciary the only department to decide upon the constitu- 
tionality of laws, and yet, notwithstanding Judge Davis had solemnly decreed that 
the Embargo Law was constitutional, they have continued to denounce it as uncon- 
stitutional." 

2 10th Cong., 2d Sess.; speeches in the House of Gardenier, Jan. 20, Dana, Feb. 
2, Gholson, Feb. 2, Jackson, Feb. 6, 1809. 



364 THE SUPREME COURT 

trine. While stating that he utterly disclaimed the 
doctrine of secession and dismemberment, he neverthe- 
less said: "If any State Legislature had believed the 
Act to be unconstitutional, would it not have been 
their duty not to comply with its unconstitutional 
provisions ? . . . I consider that the State Legislatures, 
whose members are sworn to support the Constitution, 
may refuse assistance, aid or cooperation as to an Act 
of Congress which they sincerely believe to be un- 
constitutional. And one step further, I think may be 
admitted. They may refuse the cooperation of per- 
sons holding offices as agents under the State. If 
we admit all these principles, gentlemen need not sup- 
pose that they in the least endanger the Constitution 
of the Union." To such sentiments advocating State 
resistance and relying on Virginia's precedent, Con- 
gressmen from that State pointed out very truly that 
Virginia had obeyed the Sedition Law, even though 
protesting its invalidity. 'There never was a more 
splendid and memorable triumph of law over public 
feeling than in the trial of Callender in 1800. There 
where everyone around the Court execrated the law, 
we saw its authority supported. . . . What did the 
people of Virginia do ? They saw one of their citizens 
go into a dungeon, by virtue of an Act which they 
deemed to be oppressive and contrary to the spirit of 
the Constitution. They disdained to oppose the execu- 
tion of a law constitutionally passed and declared by the 
judicial authority to be constitutional," said Thomas 
Gholson of Virginia ; and John G. Jackson stated that 
though he was proud to see Massachusetts "wishing 
to cling to the example of Virginia", all that Virginia 
had done in her Resolutions of 1798 was to resolve 
that the Constitution had been violated, and that the 
States who were parties to the compact be invited to 



JUDGE JOHNSON AND THE EMBARGO 365 

cooperate in constitutional efforts to procure a repeal of 
the law. "No man raised a hand to resist the law. . . . 
There can be no doubt that the States who are parties to 
the compact can interpose, and by uniting their efforts 
procure a repeal of laws violating this compact ; but 
the course of wisdom is to do so calmly and dispassion- 
ately, as we proposed, not by a seditious and rebellious 
resistance." 

"Things turned Topsy Turvy — Federalists turned 
Anti-Federalists — The Friends of Order turned Jaco- 
bin", were the headlines used by the Richmond Enquirer 
in describing the situation ; and it justly said : "If these 
doctrines go into effect, the chain that binds together 
these States will soon be dissolved. If it be at any 
time within the power of a State to evade the force 
of the General Government ... if it be the General 
Government is thus compelled to consult the wishes 
of each State before it dares to adopt any important 
law, the Union of the States will be like a rope of 
sand. . . . The doctrine and course of the Federal- 
ists is at war with all their professions. Compare 
their doctrine in 1799 with their practices in 1809. 
Then, they protested against the interposition of the 
State Legislatures, and clung to the Courts of the United 
States as the only tribunal to try the constitutionality 
of a law. Now, they seem to be flying from these 
Courts to those very Legislatures against whose juris- 
diction they have so solemnly entered their pro- 
tests." l 

1 Richmond Enquirer, Feb. 4, March 24, 1809. 



CHAPTER EIGHT 
PENNSYLVANIA AND GEORGIA AGAINST THE COURT 

1809-1810 

It was with such sentiments as those of Quincy and 
Dana ringing through the halls of Congress and given 
wide circulation through the country by the news- 
papers, encouraging conflict between the States and the 
Nation, that the Court, for the second time in its his- 
tory, was confronted with the possibility of a direct col- 
lision with the authorities of a State — the "incorrigibly 
Democratic" State of Pennsylvania. During the de- 
bates on the adoption of the Constitution in 1787-1788, 
the probability, or rather the certainty, of a clash be- 
tween the Federal and State sovereignties had been the 
chief argument of the Anti-Federalists against the new 
frame of government. Within three years after the 
adoption of the Constitution, the case of Chiskolm v. 
Georgia had presented the issue in a grave form. Since 
then, the Court had been fortunate enough to escape the 
necessity of a decision involving friction with a State. 
The Twenty-Fifth Section of the Judiciary Act author- 
izing appeals on writ of error to State Courts had always 
been regarded as the probable source of trouble ; and 
the Court had been extremely careful to avoid taking ju- 
risdiction under this Act, wherever it could be avoided. 
As an illustration of its caution, it had even hesitated 
in a case in which it would seem that there ought to 
have been no doubt whatever — Mathews v. Zane, 4 
Cranch, 382, in 1804, — a suit between two citizens of 



PENNSYLVANIA AGAINST THE COURT 367 

Ohio claiming land under a Federal statute, which came 
to the Court on writ of error to the Ohio Supreme Court. 
As the case involved a construction of Federal law, it 
was clearly within express scope of the Judiciary Act ; 
but counsel arguing against the jurisdiction urged 
that the power of revising decisions of State Courts was 
given merely to maintain the authority of the Federal 
laws " against the encroachments of State authorities 
... to prevent them from being frittered away by 
State jealousies and State powers", and that this situ- 
ation did not arise in a case between two citizens of 
the same State claiming under the same Federal statute. 
The Court (as the Reporter stated) "at first hesitated 
as to the jurisdiction", but finally Marshall declared it 
to be the opinion of the majority that the Court had 
jurisdiction, as the Judiciary Act "intends to give this 
Court the power of rendering uniform the construction 
of the laws of the United States, and the decisions upon 
the rights or titles claimed under those laws." Later, 
however, at the critical period of the Embargo, which has 
just been described, the supremacy of the Federal Gov- 
ernment and of the Federal Court was seriously and 
dangerously challenged by the State of Pennsylvania in 
two cases then pending. Opposition to the Federal Gov- 
ernment had been a somewhat leading feature of the his- 
tory of that State ever since 1789. In 1794, the Whiskey 
Insurrection had been fostered in it ; the leading cases 
of breaches of neutrality arose there; it constituted 
one of the strongest hotbeds of Anti-Federalist opposition 
to President Adams' measures ; in it occurred the so- 
called Fries Rebellion and trials for treason ; its editors 
were leading violators of the Sedition Law. In 1798, 
the Chief Justice of the Pennsylvania Supreme Court, a 
leading Anti-Federalist, had questioned the authority 
of the Federal Judiciary in State v. Cobbett, 3 Dallas, 



368 THE SUPREME COURT 

467, though his decision had never been brought before 
the United States Supreme Court for review. This 
early challenge had arisen as follows. At a time when 
the political contest between the Federalists and Anti- 
Federalists was at its height, and when the newspapers 
teemed with virulent libels of each party on the other, 
William Cobbett, one of the most venomous of the 
Federalist editors, had been indicted for libel in a 
State Court of Pennsylvania ; having broken his re- 
cognizance and being sued by the State for debt, he 
sought, as an alien, to remove the case into the United 
States Circuit Court under the provisions of the Federal 
Judiciary Act; Chief Justice McKean (a bitter Anti- 
Federalist) in refusing the right to remove had denied 
that under the Constitution the right could be given, 
and had controverted the power of the Federal Court to 
adjudicate, in case of difference of opinion between the 
State and Nation as to the meaning of a law ; he had 
asserted the extreme State-Rights theory that the Con- 
stitution was a "league or treaty made by individual 
States, as one party, and all the States, as another 
party ", that just as when two nations differed as to the 
meaning of a treaty, it must be adjusted by negotiation, 
mediation, arbitration or the fate of war, so each State 
must have a right to retain its own interpretation of the 
Constitution, and that "there is no provision in the 
Constitution that in such a case the Judges of the Su- 
preme Court of the United States shall control and be 
conclusive ; neither can the Congress by a law confer 
that power. There appears to be a defect in this matter ; 
it is a casus omissus which ought in some way to be 
remedied . . . The remedy must be found in an 
Amendment of the Constitution." Such a doctrine 
had been but the early statement of Calhoun's Nullifica- 
tion theories of 1833 and of Secession in 1861 ; and if 



PENNSYLVANIA AGAINST THE COURT 369 

the case had ever reached the Supreme Court, it must 
have been set aside or the United States would have 
ceased to be a Nation. 

In 1807, the Legislature of Pennsylvania had delib- 
erately defied the Court, and a serious conflict had only 
been averted by the Governor's veto. This clash had 
arisen over a case involving a dispute between the State 
and the Holland Company which had purchased large 
amounts of land on the frontier and had failed to make 
settlements as required by statute. As the lands claimed 
by the Company were in part occupied by other later 
settlers and in part contended by the State to have re- 
vested in it, an intense fight had been made in the Federal 
Courts, and finally an action of ejectment had reached 
the Supreme Court. There, after elaborate argument 
by Alexander J. Dallas, Edward Tilghman, Jared Inger- 
soll and William Lewis for the company against Joseph 
B. McKean and William Tilghman representing the 
State's interests, it had been determined adversely to 
Pennsylvania in Huidekoper's Lessees v. Douglass, 3 
Cranch, 1. Thereupon, the Legislature passed a reso- 
lution that it deemed the State the real party to all suits 
affecting these lands and that it "solemnly protests 
against and positively denies the right of any Court of 
the United States to take cognizance of or exercise any 
jurisdiction touching any suit or action brought or that 
may be brought." This resolution went farther than 
even Thomas McKean (who was then Governor) him- 
self was prepared to go, and he vetoed it, stating that 
in view of the Supreme Court decision, "a just sense of 
law and order would seem to prescribe an acquiescence 
in that judgment. . . . That the declaration of a 
legislative opinion on the part of the State ... in direct 
opposition to a judicial decision on the part of the United 
States is in itself so extraordinary, either as an instru- 



370 THE SUPREME COURT 

ment of advice or intimidation, and in its consequences 
must either be so abortive or so injurious, that I deem 
it a duty, not only to my reputation, but to my country's 
peace and happiness, to afford the opportunity of these 
objections for solemn reconsideration." l That the 
resentment of the Legislature over the decision was 
somewhat justified seems clear, as the Court had adopt- 
ed an exceedingly strained construction of the statute. 2 
And McKean's views of the right of the Legislature to 
declare its sentiments were not shared by the Republi- 
cans in general. "The Federal Courts prostrated the 
sovereignty of Pennsylvania at its feet by a sophistical 
construction of the Constitution. The State, disposed 
to assert its legitimate rights, protested against judicial 
usurpation. . . . The Constitution of the United States 
protects against the suability of States. By a hocus- 
pocus trick of a Federal Court, Pennsylvania is sued. 
She protests through her representatives the violation 
of her rights. Is there to be no remedy for a State 
against the unconstitutional exercise of power by a de- 
partment of the General Government?" wrote one Re- 
publican. 3 The next year, one of the leading support- 
ers of State Supremacy, Simon Snyder, being elected 
Governor, the Legislature of 1809 proceeded to issue a 
further challenge to the United States Supreme Court 
and to deny its authority in two cases then pending. 
The first of these was the case of Miller v. Nicholls, in 
which in 1805 the State Supreme Court had decided 
against the claim of the United States Government on 

1 Papers of the Governors of Pennsylvania (1900), Series 4, veto of March 31, 
1807; see also Message of Gov. McKean, March 18, 1805, transmitting reports 
of the State's attorneys on the result of the suit. 

2 For a description of the speculative operations in land by the Holland Company, 
see History of the Supreme Court (1912), by Gustavus Myers, 114, 167-169, 248- 
252. 

8 As to the Republican attitude, see letter to Charles W. Hare, Aurora, Oct. 6, 
1808. 



PENNSYLVANIA AGAINST THE COURT 371 

the following facts. Nicholls, a former State official, 
had had his accounts settled by the State Comptroller 
in 1798 and a judgment entered against him for $9,987. 
Under a law of the State enacted in 1785, the Comp- 
troller's settlement gave the State a lien on her debt- 
or's property. Nicholls later became a Federal revenue 
collector and was found in default to the United States, 
which sued on a mortgage of his property, recovered 
judgment in the State Court, and levied execution. The 
money, $14,503, was paid into the custody of the State 
Court Clerk. The State Attorney thereupon moved 
that it be turned over to the State Treasury ; the 
United States Attorney, Alexander J. Dallas, con- 
tended that under a Federal statute, the United 
States was entitled to priority in payment over all 
other persons from all property owned by its debtors. 
The State earnestly argued that this statute only gave 
priority to " persons" and could not apply to a sover- 
eign State, and that if it did so apply it was unconstitu- 
tional. It is interesting to note that Dallas, Jefferson's 
Republican appointee, admitted in his argument, only 
two years after the decision in Marbury v. Madison, 
that "the authority and legal right of the Court to de- 
clare a law of this State or of the United States to be un- 
constitutional is not doubted, but it must be on the clear- 
est and plainest grounds, not on the ground of expedi- 
ence." l The State Court determined that Pennsylvania 
was entitled to the money, ordered it to be paid into the 
State Treasury, and held that the United States priority 
statute should be construed as inapplicable, and they 
further intimated that they would be prepared to hold it 
unconstitutional. " Congress have the concurrent right 
of passing laws to protect the interests of the Union as 

1 See United States v. Nicholls (1805), 4 Yeates, 251, 255; see Miller v. Nicholls 
(1819), 4 Wheat. 311. 



372 THE SUPREME COURT 

to debts due to the Government of the United States 
arising from the revenue," said Judge Yeates, "but in so 
doing they cannot detract from the uncontrollable power 
of individual States to raise their own revenue, nor in- 
fringe nor derogate from the sovereignty of any inde- 
pendent State." This contention, it is to be noted, had 
already been controverted and denied by Chief Justice 
Marshall in a case arising under the priority statute 
and decided in 1804, United States v. Fisher, saying: 
"This claim of priority on the part of the Ignited States 
will, it has been said, interfere with the right of the State 
Sovereignties respecting the dignity of debts, and will de- 
feat the measures they have a right to adopt to secure 
themselves against delinquencies on the part of their own 
revenue officers. But this is an objection to the Consti- 
tution itself. The mischief suggested, so far as it can 
really happen, is the necessary consequence of the su- 
premacy of the laws of the United States on all subjects 
to which the legislative power of Congress extends/' It 
appears that although Marshall's opinion had been ren- 
dered a year before, it had not been published or commu- 
nicated to the Pennsylvania Judges. 1 From the deci- 
sion of the State Court, the United States, after a lapse 
of four years, took an appeal by writ of error to the 
United States Supreme Court, which was filed in 1809; 
and that Court took the somewhat extraordinary step 
of issuing a citation to the Governor and Attorney- 
General of Pennsylvania (though the State was not in 
any way a party to the suit) notifying the State to 
appear, if she thought fit, and become a party to the 
suit, and to bring into question the State's right to re- 

1 See Brackenridgo, J., in United Stales v. NicholU, I Yeates, ^. r >i : "I vriahed 
to have seen the opinion of Judge Washington in the caw <>f United States v. 
Fisher and others, and also that delivered at the opinion <>f the majority of the 
Judges of the Supreme Court, and to have compared both opinions with the Con- 
stitution and the Act of Congress. I have had DO such opportunity and therefore 
have made out no regular opinion." 



PENNSYLVANIA AGAINST THE COURT 373 

tain its lien. This action violently aroused the Penn- 
sylvania Legislature, which was strongly Republican in 
politics. A truculent set of resolutions was introduced, 
which recited that :"It is inexpedient for this Common- 
wealth to appear or become a party to the said suit or in 
such manner to permit her right aforesaid to be ques- 
tioned, declaring at the same time a firm determination 
to support the Constitution of the United States, and 
to submit to all lawful powers and authorities derived 
therefrom, but conceiving that this Commonwealth has 
never surrendered to the General Government a power 
to defeat or destroy her right to enforce the collection 
of her own revenues, without which power she could 
not exist as a sovereign State, and not being willing to 
ascribe to the Federal Court, by mere implication, and 
in destruction of such pre-existing right of the State 
Government, a power which would involve such a con- 
sequence." These resolutions provided : first, that the 
Clerk of the Court should be required to pay the money 
into the State Treasury ; second, that "the Governor be 
authorized and required to protect the just rights of the 
State in respect of the premises, by such means as he may 
deem necessary for the purpose, and also to protect the 
person and property of the said [Clerk] . . . from any 
process whatever which may issue out of the Supreme 
Court of the United States in consequence of his obedi- 
ence to the requisition and injunction of this Act" ; and 
third, that the Secretary should transmit a copy of this 
Act to the Judges of the United States Supreme Court. 1 
This legislation was enacted, February 1, 1809, after 
striking out the last two provisions, which the news- 
papers termed "the warlike sections." But even with 
this elision, the action of the Legislature was in direct 
defiance of the Federal Court, since it took possession of 

1 American Daily Advertiser (Phil.), Jan. 28, 31, Feb. 4, 1809. 



374 THE SUPREME COURT 

the controverted fund, pending decision on the writ of 
error. "The conduct of our Legislature at Lancaster is 
very strange and may be very mischievous," wrote 
United States Attorney Dallas to United States Attor- 
ney-General, Caesar A. Rodney. 'They have pros- 
trated the constitutional barrier between the Judicial 
and Legislative departments. The Legislature at Bos- 
ton will probably attempt to prostrate the barrier be- 
tween the State and Federal Governments. . . . The 
times are bad." ' Just at this serious juncture in the 
relations of the Federal and State Governments, and at 
the time of the most violent attacks upon the Federal 
Embargo Act in the New England States and in Con- 
gress, an even more dangerous clash occurred between 
the Pennsylvania and the United States officials, in a 
dispute which had been in existence between the two 
sovereignties for about twenty-five years. During the 
Revolution, a sea-captain named Olmstead had secured 
a judgment in the old Federal Court of Appeals in a 
prize case. The Sloop Active, decreeing to him the pro- 
ceeds of the sale of a prize, against a claim set up by the 
State of Pennsylvania. The State had refused to rec- 
ognize the authority of the Court, and declined to com- 
ply with the decree, or to allow Olmstead to receive the 
proceeds of the sale of the vessel, which had been de- 
posited in the personal custody of the State Treasurer. 
The case had slept for fifteen years, until, in 1803, 
Olmstead sued in the United States District Court in 
Pennsylvania, sitting in admiralty, and Judge Peters 
had decreed that the funds be paid to Olmstead. There- 
upon, Governor Mckean transmitted the proceedings 
to the Legislature, stating that, though the whole pro- 
cess should be considered coram non jinlicc. since the 
actual party involved was the Slate which could not be 

1 Caesar A. Rodney Papers MSS, letter of Feb. 6, 1809. 



PENNSYLVANIA AGAINST THE COURT 375 

sued, " resistance would be extremely disastrous." The 
Legislature, however, at once passed a statute defying 
the District Court's decree as a usurpation of jurisdic- 
tion, and requiring the funds to be paid into the State 
Treasury, and directing the Governor "to protect the 
just rights of the State from any process issued out of 
any Federal Court." This challenge to the power of the 
Federal Judiciary in 1803 met the approval of the Re- 
publican papers ; and the Aurora, inveighing against 
"the incipient encroachments of the Judiciary", said: 
'The people ought ever to be aware that the grand ob- 
ject of modern Federalism is to lessen and encroach upon 
the authority of individual States, and that the move- 
ments of the Federal Courts having this tendency ought 
to be regarded with a very jealous eye. ... If the Fed- 
eral Courts, under the insidious cover of legal forms and 
technical decisions, can legislate for the separate States, 
or set aside their legislative acts, or bring State inde- 
pendency under the control of jurisdiction, the spirit of 
the Union is destroyed and the liberties of the people will 
be brought to the footstool of aristocracy. " 1 As this 
editorial appeared just after the decision in Marbury v. 
Madison, and just at a time when the impeachment of 
Judge Peters was being freely discussed, in combination 
with the proceedings against Judge Chase, the former 
showed his weakness by refraining to make any order 
to carry his decree into effect. For five years the matter 
lapsed, until, in 1808, Olmstead, then a war veteran of 
eighty-two years of age, applied to the Supreme Court 
for a mandamus against the Judge. In 1809, the case 
was argued by Attorney-General Caesar A. Rodney, 
William Lewis, and Francis Scott Key against John 
Sergeant — United States v. Judge Peters, 5 Cranch, 115. 
On February 20, 1809, Chief Justice Marshall rendered 

1 Aurora, April 11, 1803. 



376 THE SUPREME COURT 

an opinion sustaining the Federal power and ordering a 
mandamus to issue to carry the former decree into effect. 
The delicacy of the case, involving the action of the 
State Legislature, was fully realized by the Court ; and 
Marshall stated that it had considered the facts "with 
great attention and with serious concern"; but he 
added solemnly, since the State had passed a law direct- 
ing its officials to disregard "any process whatever 
issued out of any Federal Court" the Court was forced 
to act for the protection of the National supremacy. 
"If the Legislatures of the several States may, at will, 
annul the judgments of the Courts of the United States, 
and destroy the rights acquired under those judgments, 
the Constitution itself becomes a solemn mockery, and 
the Nation is deprived of the means of enforcing its 
laws by the instrumentality of its own tribunals. So 
fatal a result must be deprecated by all ; and the people 
of Pennsylvania, not less than the citizens of every other 
State, must feel a deep interest in resisting principles 
so destructive of the Union, and in averting conse- 
quences so fatal to themselves. " As has been recently 
said, "these clear strong words were addressed to Mas- 
sachusetts and Connecticut no less than to Pennsyl- 
vania. " * He closed by saying that : "It will be readily 
conceived that the order which the Court is enjoined to 
make by the high obligations of duty and law, is not 
made without extreme regret at the necessity which has 
induced the application. But it is a solemn duty, and 
therefore must be performed. " This opinion was pub- 
lished in full in most of the leading newspapers. 2 

As soon as the decision was announced, the Republican 
Governor of Pennsylvania sent a message to the Legisla- 
ture at Lancaster, on February 27, stating that he in- 

1 Marshall, IV, 20. 

2 See among others, American Daily Advertiser (Phil.), March 2, 1809; Gazette 
of the United States, March 2, 1809 ; Savannah Republican, March 21, 1809. 



PENNSYLVANIA AGAINST THE COURT 377 

tended to] call out the militia to prevent any enforce- 
ment of the Court's decree, and asking for legislation, 
though " the execution of this law may produce some 
serious difficulties as it respects the relations between 
the State Government and that of the United States. " 1 
This message came just at the time when the Repub- 
lican newspapers were filled with descriptions of the re- 
bellious conditions in New England ; and the Aurora, 
which hitherto had been a staunch State-Rights organ, 
now reversed its position and refused to support rebel- 
lion in Pennsylvania against the Court and the Repub- 
lican administration in Washington, saying : "It seems 
as if infatuation and folly had become epidemic at Bos- 
ton and communicated its infection to Lancaster. . . . 
The laws of the United States are also part of the laws of 
this Commonwealth, and the decisions of the Supreme 
Court of the United States are and must be a para- 
mount authority to any such law. . . . Lamentable in- 
deed is the state of morals and justice in society, when 
such transactions as have been exhibited in Massachu- 
setts and in Connecticut, and now in the case of Olm- 
stead can occur. " 2 The chief Federalist paper in Phila- 
delphia viewed the Governor's action as an indorsement 
of the revolt of New England Federalists, saying: 
' After having ordered out the militia to oppose the 
United States officials, I trust we shall not hear poor 
Massachusetts so abused for merely complaining when 

1 Aurora, Jan. 31, Feb. 9, 15, March 2, 3, 1809 ; American Daily Advertiser, March 
1, 2, 14, 17, 20, 22, 23, 1809; Gazette of the United States, March 2, 1809, contain- 
ing the orders of Gov. Snyder to Gen. Bright of Feb. 27, and the report and resolu- 
tions introduced into the Legislature challenging the action of the Court. 

2 The Aurora was attacked by other Republican papers who claimed that its 
position was due to a personal political quarrel of its editor, Duane, with Gov. 
Snyder. See Philadelphia Press, quoted in New England Palladium, April 28, 
1809 : " He (Duane) forgets the columns of his paper that deprecated the usurpa- 
tion of the Judges and the importance of maintaining the sovereignty of the States 
against their encroachments. He forgets his philippics against Judge Marshall 
in the case of Burr." American Citizen, March 2, 9, 14, 1809. 



378 THE SUPREME COURT 

the very existence of her commerce and prosperity is 
threatened" ; and three days later, saying : "The Gov- 
ernor has ordered Gen. Bright out. . . . Orders are 
given to avoid force and bloodshed unless compelled by 
the necessity of the case. The marshal must recede or 
woe betide him. " Another stated its fear that " serious 
consequences will result from the collision. " In other 
parts of the country, there was general anxiety and 
alarm. "Had a message like this come from a New 
England Governor, the cries of treason and rebellion 
would have filled every Democratic paper in the land," 
said a Federalist paper in New York. "We anxiously 
wait to see how this will end. Whether the United 
States or the State will give way remains to be known, " 
said a Boston paper. 1 

The adoption by the Legislature of resolutions deny- 
ing the power of the Court to adjudicate on the rights 
of the State called forth further denunciation from a 
section of the press of both parties, and a radical Re- 
publican paper in New York voiced these views : "The 
Legislature of Pennsylvania asserts that when the sov- 
ereignty of one of the States is encroached upon by 
the National Government, it becomes the duty of the 
offended State to resist with arms the encroachment. 
The Legislature admits no umpire between the State 
and the National Government. They will be their own 
judges in their own case. They set at defiance the 
decisions of the Supreme Court of the Union. In these 
respects Pennsylvania has transcended Massachusetts. 
... If such opinions are to prevail and to be enforced 
by arms we may have 17 States but we cannot have a 
Supreme National Government. " 2 

The rebellion now developed rapidly. On March 

1 New York Commercial Advertiser, March 2, 1809 ; Columbian Centinel, March 
8, 1809. 

2 American Citizen, March 24, 1809. 



PENNSYLVANIA AGAINST THE COURT 379 

24, Judge Peters, in conformity with the mandate from 
the Court, issued process against Mrs. Sergeant and 
Mrs. Waters (executrices of the former State Treasurer, 
Rittenhouse) who were retaining the fund involved from 
its adjudicated owners. The United States marshal 
in attempting to serve process was met with armed 
resistance by the State troops who surrounded the Rit- 
tenhouse mansion, and, thereupon, summoned a posse 
of two thousand men. The Federal Grand Jury indicted 
Gen. Bright for resisting the laws of the United States 
and his arrest was ordered. 1 "The great evil of this 
case is the impression it must make abroad, and the 
handle it must afford to disaffection in other parts of 
the Union. The question is, however, so important 
to the public safety and to the security of the federation 
of the States that it requires to be settled," said the 
Aurora. "This issue is in fact come to this : whether 
the Constitution of the United States is to remain in 
force or to become a dead letter. The plain question 
is, shall the laws of the Union be violated or maintained ? 
We have heard much talk about the independence of 
the Judiciary, from those who wish to create a tyranny 
under the name of that independence . . . but here is 
a point at which the independence of the Judiciary, in 
its strict and constitutional sense, exists and demands 
to be supported and maintained, and in which it must 
be maintained, or there is an end to government. . . . 
The decree of the Court must be obeyed." This 
was strong language from a paper which hitherto had 
been the foremost opponent of the Federal Judiciary. 

1 Aurora, March 28, April 6, 13, 17, 20, 1809 ; American Daily Advertiser, March 
29, 30, 31, 1809 ; Gazette of the United States, March 27, 1809. For interesting 
dispatches regarding the progress of this case, see New England Palladium, March 
14, 24, 31, April 18, 1809; Connecticut Courant, March 15, 22, 29, April 5, 12, 
19, 1809; New York Commercial Advertiser, April 5, 6, 11, 12, 14, 17, 29, May 2, 
3, 4, 6, 1809 ; New York Evening Post, March 27, 28, 30, April 4, 14, 19, 20, May 4, 
1809; Savannah Republican, March 21, 25, April 6, 15, 22, May 4, 8, 1809. 



380 THE SUPREME COURT 

There was a portion of the Republican press, however, 
which sympathized with Pennsylvania's attitude and 
believed that the importance of the episode was being 
"magnified beyond its true dimensions and is eagerly 
seized in some sections of the Union as indicating a 
deliberate intention of the Legislature of a powerful 
and respectable State to unfurl the banner of insurrec- 
tion against the legitimate authority of the Union. 
Nothing can be more unjust. " One paper, the National 
Intelligencer, attributed the misrepresentation to be 
"the off -spring of the ignorance or malignity of the 
Essex Junto (in Massachusetts), who seek an apology 
for their own conduct in that of others, although dictated 
by very different motives. The Essex Junto have har- 
bored a deadly hostility to the Administration and cher- 
ished the purpose of dividing the Union. ... On the 
other hand, the State of Pennsylvania has always gloried 
in the Union. . . . Whatever errors may have crept 
into the proceedings of her Legislature can only be 
ascribed to an honest difference of opinion in a case 
certainly not destitute of difficulty. " ! Another promi- 
nent Republican paper said: "The opposition papers 
make no little noise about what they term an insurrection 
in Pennsylvania. ... It is to be wished that certain 
other States had shown no stronger symptoms of re- 
bellion than this great and respectable State has done. " 
To this, the Federalist papers retorted, deploring the in- 
consistent position of their opponents 2 and saying : "The 
Democratic papers have taken very little notice of this 
opposition to the laws of the United States by force 
of arms, but their railings and denunciation at the con- 
stitutional measures adopted in the Eastern States by 

1 National Intelligencer, March 31, 1809 ; National Aegis, April 12, 1809. 

2 Columbian Centinel, April 15, 1809; New England Palladium, March 31,-1809 ; 
New York Commercial Advertiser, March 28, 1809; New York Evening Post, 
April 14, 1809. 



PENNSYLVANIA AGAINST THE COURT 381 

petition and remonstrance will be long held in remem- 
brance. " "Democracy in an Old Character or Penn- 
sylvania resisting the United States" was the comment 
of another. "The rebellion in Pennsylvania is assuming 
a more dangerous and threatening aspect," said another, 
which stated that the description of Gen. Bright's re- 
sistance "will excite the regret and indignation of all 
who regard the safety of the Union, the authority of the 
General Government and the honor of the country." 
And a New York paper launched this savage attack 
upon its Republican opponent: "A second time, the 
Democrats of Pennsylvania are embodied for the pur- 
pose of resisting the laws of the United States and thus 
precipitating a dissolution of the Union. Yet those 
who have the wicked effrontery to charge the State of 
Massachusetts and the Federal party in this State with 
a design to overthrow the Union are the only wretches 
in America (if we except some of the Jefferson party in 
Virginia) who have ever harbored the desperate design 
of arraying a rebellion against the government. . . . 
And now behold this same Democratic horde, under the 
direction of a Democratic Governor not three removes 
in understanding above Jack Cade, ordering out the 
force of the State in open and direct defiance of the 
General Government. . . . The United States must 
prevail, and then the Governor of the State and all 
who obey him will be guilty of treason and ought to be 
hung on a gibbet. " 

Meanwhile, the Legislature, alarmed at the serious 
crisis, debated methods of retreat. " A Cabinet council is 
now holding in the deeply important case of Olmstead, " 
wrote a correspondent, March 27. "It had been sup- 
posed that the marshal, good, easy man, would make 
but a faint attempt to enforce the service of the process. 
The active attempt made by him has awakened the most 



382 THE SUPREME COURT 

serious apprehensions. The Attorney-General is here. 
The voice of prudence at length is heard, and it is under- 
stood that measures will be taken to compromise matters 
with the much injured, old veteran. " * On April 6, the 
State authorities showed signs of weakening, when 
Governor Snyder wrote to President Madison, trans- 
mitting to him a copy of the defiant resolutions adopted 
by the Legislature, containing a most extreme statement 
of State-Rights and Nullification. The Governor ex- 
pressed the hope that the President would "justly dis- 
criminate between opposition to the Constitution and 
laws of the United States and that of resisting the decree 
of a Judge founded, as it is conceived, on a usurpation 
of power", and that he would be "equally solicitous 
with myself, to preserve the Union of the States and to 
adjust the present unhappy collision of the Governments 
in such a manner as will be equally honorable to them 
both." Madison, then only a few months in office, 
sent a firm reply, April 13, declining to interfere, and 
saying: "The Executive is not only unauthorized to 
prevent the execution of a decree sanctioned by the 
Supreme Court of the United States, but is expressly 
enjoined, by statute, to carry into effect any such de- 
cree, where opposition may be made to it." 2 Interest- 
ing surmise may be made whether Jefferson, had he still 
been President, would have taken this determined stand 
against a State and in behalf of the authority of the 
Court. The Federalists believed that he would not 
have done so ; and one paper made the extraordinary 
suggestion that Jefferson himself, because of his inti- 
mate friendship for one of the executrices in the Olm- 
stead Case, and because of the "inveterate hostility 

1 American Daily Advertiser, March 29, 1809 ; Independent Chronicle, April 3, 
1809. 

2 11th Cong., 2d Sess., 2269-2290. The Pennsylvania Legislature's Resolutions 
were transmitted by Madison to the Senate, June 11, 1809. 



PENNSYLVANIA AGAINST THE COURT 383 

which he has manifested upon all occasions to the Judici- 
ary " had probably been "instrumental in producing the 
present state of affairs in Pennsylvania. Had this re- 
bellion broken out in the Presidency of Mr. Jefferson, 
we could not have hoped for the interference of the 
Executive. His hatred of the Judiciary would have 
preferred a seven years civil war to the triumph of 
law over the machinations of profligate politicians. 
. . . Thank God this hoary old conspirator against 
the fame and political life of the father of these States, 
the convicted traitor to the Constitution of his country, 
is shorn of all his power." With much reason, the 
Republican organ in Washington termed this effusion, 
" Insanity." 1 

Finding that no assistance was to be received from 
President Madison, and having under consideration a 
bill to authorize restoration of the fund, the Legislature 
finally decided that the State troops should be tempo- 
rarily removed ; and on April 15, the "siege of Ritten- 
house Castle" was suspended. Mrs. Sergeant at once 
sued out a writ of habeas corpus before Chief Justice 
Tilghman of the State Supreme Court. "The question 
now rests upon a basis quite distinct from the rights 
of an injured man (Ohnstead) ; it assumes a part more 
lofty and more solemn ; is the Constitution of the United 
States anything or nothing ? Shall the civil authority 
be overawed by military power ? Is our government a 
government of laws or of individual caprice?" said the 
Aurora, and a few days later it expressed the following 
sentiments which Marshall himself could not have bet- 
tered : "Laws, and not the bayonet, ought to rule in a 
democracy ; and common reason would have produced 
this solemn and irresistible conviction that on the Union 
of States depends the freedom and independence of this 

1 National Intelligencer, April 21, March 31, 1808. 



384 THE SUPREME COURT 

Nation, and that a resistance by force of arms to the 
constituted authorities of the United States had an 
inevitable tendency to prostrate that freedom and 
independence, inasmuch as it tended to destroy the 
Union of the States." Alexander J. Dallas, the Re- 
publican United States Attorney, wrote to Attorney- 
General Rodney: "The marshal has taken Mrs. Ser- 
geant and she remains in custody of his deputy at her 
own house, till the hearing on a habeas corpus before 
Chief Justice Tilghman shall be decided. ... I have 
no doubt of a favorable result. Gen. Bright set off for 
Lancaster as soon as Mrs. Sergeant was taken. The 
call for the posse has been revoked. I think the money 
will be paid to Olmstead if the Chief Justice decides 
that the process is legal. There will be no military 
conflict. The (Federal) grand jury had no hesitation 
in finding a bill against Gen. Bright and his guard. 
Indeed, there was some doubt among them of present- 
ing Governor Snyder. Mr. Ingersoll (fortunately for 
peace) is retained to assist, and he has informed me 
that he means to plead to the jurisdiction. . . . You 
will think on the subject. The object of all in office 
must be, I think, to assert the power and dignity of the 
Union, without impairing the attachment of the State 
to our Government and its administration." ! Four 
days after the arrest of Mrs. Sergeant, Chief Justice 
Tilghman, on April 19, dismissed her petition for habeas 
corpus, holding that she was properly in the Federal 
custody, and concluding his opinion by expressing his 
"anxious hope that this long-continued controversy 
will be brought to a termination, without any material 
interruption of that harmony between this State and 
the United States so essential to the prosperity of both" ; 

1 Caesar A. Rodney Papers MSS, letter of Dallas, April 17, 1809, letter of Mad- 
ison, April 22, 1809. 



PENNSYLVANIA AGAINST THE COURT 385 

and the Aurora said: "The issue was such as every 
intelligent man expected and such as every honest man 
must be satisfied with." * Meanwhile, the Legislature 
had passed an act appropriating money sufficient to 
comply with the payment ordered by the Court, and on 
April 26, the Federal judgment was satisfied. "Devo- 
tion to the Constitution of the Union, reverence for the 
cause of justice have prevailed and triumphed over 
the narrow influence of official ignorance and the ser- 
vility of place and corruption," said the Aurora. "The 
affair of Olmstead has passed off without the threatened 
collision of force," wrote President Madison to his At- 
torney-General. "It is bad enough as it is, but a bless- 
ing compared with such a result." 

The final scene in this drama of rebellion was played 
before the intrepid Judge Bushrod Washington, sitting 
in the United States Circuit Court in the trial of Gen. 
Bright for resisting the laws of his country. The case 
aroused great excitement in Philadelphia. "Rumors, 
terrors and threats of every kind were put into circula- 
tion," wrote a lawyer who was present. "It was pub- 
licly proclaimed that Judge Washington would never 
dare to charge against the defendants, or to pronounce 
sentence against them if they were convicted. But the 
people did not know him, they were incapable of appre- 
ciating his rare moral and judicial qualities. . . . Upon 
the close of the speeches of the counsel, a vast multi- 

1 New York Commercial Advertiser, April 29, 1809 ; New York Evening Post, 
April 20. 1809; National Intelligencer, April 21, 24, 1809. The American Citizen, 
April 21, 1809, printed an amusing account of the argument before Tilghman, from 
a Republican point of view, stating that William Lewis' argument in behalf of the 
Government was made under "the tyrannic influence of petty, personal, political 
and party passions . . . and the successive Legislatures were covered with the 
slime which he deposited, as he crawled and crept over or touched upon their names 
or their acts"; it also stated that Jared Ingersoll's argument for the State was a 
"critical, luminous and impressive dissection of Chief Justice Marshall." The 
Richmond Enquirer, April 25, 1809, quoted the Philadelphia True American as 
saying: "The war in this city is at an end and tranquillity and peace again re- 
stored." 

VOL. I — 13 



386 THE SUPREME COURT 

tude of auditors, and many of those who maintained 
that the Judge would at last shrink from a conviction, 
assembled in the room where the Court then sat. The 
argument being ended, the Judge, turning to the crier, 
said to him, in the mildest and most composed way : 
' Adjourn the Court, to meet tomorrow morning in the 
room on the ground floor of this building. This is an 
important case — the citizens manifest a deep interest 
in its result, and it is but right that they should be al- 
lowed, without too much inconvenience, to witness the 
administration of the justice of the country, to which 
all men, great and small, are alike bound to submit.' " l 
When the Court reassembled, the defendants were found 
guilty, and the Judge in an impressive speech sentenced 
them to fine and imprisonment ; but as the disturbance 
gradually died down, this sentence was within a month 
remitted by President Madison. 2 "Thus has termi- 
nated the third instance in that State of systematized 
opposition to the constituted authorities of govern- 
ment," said a Federalist paper in Connecticut. 'The 
farce which has been enacting in Pennsylvania for some 
weeks under the management of S. Snyder has ended," 
was the comment in New York in both Federalist and 
Republican papers. That there was still a certain 
amount of Republican sympathy for the rebellion may 
be seen from a comment in a Baltimore paper, which 
termed its account of Gen. Bright's trial — "Sketches 
of the farce played before old Peters and the imbecile 



1 The Forum (1856), by Davis Paul Brown, I, 377-378. 

2 Aurora, May 2, 3, 4, 6, 9, 1809; National Intelligencer, May 8, 1808; Connecti- 
cut Courant, May 16, 1809; New York Evening Post, May 11, 1809; American 
Citizen, April 21, 1809. See in general, The Whole Proceedings in the Case of Olm- 
stead v. Rittenhouse (Phil., 1809) ; The Trial of General Bright in the Circuit Court 
of the United States (Phil., 1809) . See also The Case of the Sloop Active, by Hampton 
L. Carson, Penn. Mag. of Hist, and Biog. (1892), XVI; and authorities and Reso- 
lutions of the Pennsylvania Legislature of April 3, 1809, cited in State Documents 
on Federal Relations (1911), by Herman V. Ames, 46-48. 



PENNSYLVANIA AGAINST THE COURT 387 

Washington, two of the usurpers" ; 1 and a Philadelphia 
paper, in describing the throngs of citizens who sur- 
rounded the jail "in which are incarcerated the de- 
fenders of the State sovereignty", said that "it was with 
some difficulty that popular indignation was restrained 
from venting itself against those who have been the 
most active in prostrating the rights of the State." 2 
The Richmond Enquirer, a Republican paper which had 
been opposed to the action of Pennsylvania throughout, 
gave the following summary of its conclusions as to situ- 
ation of the Federal Courts with reference to the States : 
"The State Legislatures should not possess the power to 
arrest Federal process. . . . On the other hand, the 
sovereignty of the States should be guarded with the 
utmost circumspection. The true doctrine is this : let 
the decisions of the Federal Courts be paramount, but 
as a pledge that these decisions should not entrench 
upon the sovereignty of the States or the provisions of 
the Constitution, let the Judges be more responsible 
in all impeachments, let the decision be made by a ma- 
jority instead of two thirds of the Senate, and at all 
events let the phrase * high crimes and misdemeanors ' 
in the Constitution be so amended as that the Judges 
may be impeached for those vices and heresies which 
Judge Chase has softened down into ' errors of 
opinion.' This was the same doctrine which had 
been urged upon the Senate and rejected in the Chase 
impeachment, four years before. 

These three episodes in 1808-1809 of the Johnson 

1 Another Republican paper, the American Citizen, May 9, 1809, quoting this 
from the Baltimore Whig, termed it "a disorganizing Jacobinical passage from that 
sink of imbecility and violence." 

2 New York Commercial Advertiser, May 6, 1809, quoting Philadelphia Press, 
and saying the Court's decision ought "to have restored tranquility and silenced 
the spirit of rebellion . . . but the friends of Snyder and insurrection, in open 
contempt of the constituted authorities, meet in turbulent assemblies and threaten 
to prostrate the rights, laws and dignity of the Federal Government." 



388 THE SUPREME COURT 

Mandamus, the Embargo and the Pennsylvania Rebel- 
lion have been described at length, since they afford a 
striking illustration of the pronounced effect upon 
American history and upon the American Union of the 
States, produced by the existence of a sturdy, independ- 
ent and courageous Federal Judiciary. Without men 
like William Johnson, John Marshall, Bushrod Wash- 
ington and John Davis, the Union might well have been 
in great danger in these early years. These three epi- 
sodes, moreover, present an interesting illustration of 
the fact that, throughout American history, devotion to 
State-Rights and opposition to the jurisdiction of the 
Federal Government and theJFederal Judiciary, whether 
in the South or in the North, has been based, not so 
much on dogmatic, political theories or beliefs, as upon 
the particular economic, political or social legislation 
which the decisions of the Court happened to sustain 
or overthrow. No State and no section of the Union 
has found any difficulty in adopting or opposing the 
State-Rights theory, whenever its interest lay that way. 
That the Eastern States did not become the stronghold 
of the State-Rights party was due, not to their attach- 
ment to Federalist political doctrines, but rather to the 
fact that, upon the whole, Congressional legislation 
(other than the Embargo) and a broad judicial construc- 
tion of the Constitution favored their economic and 
social interests. In 1809, however, these States were 
more nearly prepared than were the Southern States 
to indorse the extreme views of Pennsylvania as to 
State Sovereignty. Though the Legislature of that 
Republican State passed a set of defiant resolutions 
inviting its sister States to join in favoring an Amend- 
ment to the Constitution to establish an "impartial 
tribunal to determine disputes between the General 
and State Governments", the proposal was received 



PENNSYLVANIA AGAINST THE COURT 389 

with no favor, outside of New England, and resolutions 
of disapproval were passed by the Legislatures of Ten- 
nessee, Kentucky, New Jersey, Maryland, Ohio, Geor- 
gia, North Carolina and Virginia and even of New 
Hampshire and Vermont. 1 

The next Term of the Court, in 1810, was a memorable 
one. Though the country had quieted down from the 
intense excitement prevailing over the Embargo situa- 
tion, and the States had somewhat relaxed their refrac- 
tory attitude towards the Federal Government, the 
Court was confronted with two cases, both of great 
importance, in which the relations of the Federal Judi- 
ciary towards State Legislatures and State corporations 
were involved. In Bank of the United States v. Deveaux, 
5 Cranch, 61, 2 the question was presented whether a 
corporation suing or sued in the Circuit Court of the 
United States (which had jurisdiction only in case of di- 
verse citizenship of the parties) must be alleged to have 
all its stockholders citizens of a State other than that 
of the opposite party to the suit. On the decision of 
this case hung the important issue whether the State 
Courts or the Federal Courts should adjudicate in cases 
involving corporations having stockholders from differ- 
ent States. Distinguished counsel took part in the 
argument — Philip Barton Key, Robert G. Harper, 
Charles J. Ingersoll, John Quincy Adams, Walter Jones 
and Horace Binney (who made his first appearance in 
the Court). The reason of giving jurisdiction to the 
Courts of the United States in cases between citizens of 
different States," said Adams, ''applies with the greatest 

1 State Documents on Federal Relations (1911), by Herman V. Ames. It may be 
noted that, in 1810, the State of Virginia, in its reply, declared that "a tribunal 
is already provided by the Constitution of the United States (to wit : the Supreme 
Court) more eminently qualified to decide the disputes aforesaid in an enlight- 
ened and impartial manner than any other tribunal which could be created." 

2 Two other cases were argued with the Deveaux Case, Hope Insurance Co. v. 
Boardman and Maryland Insurance Co. v. Woods. 



390 THE SUPREME COURT 

force to the case of a powerful moneyed corporation 
erected under the laws of a particular State. If there 
was a probability that an individual citizen of a State 
could influence State Courts in his favor, how much 
stronger is the probability that they could be influenced 
in favor of a powerful moneyed institution which might 
be composed of the most influential characters in the 
State. What chance for justice could a plaintiff have 
against such a powerful association in the Courts of a 
small State whose Judges perhaps were annually elected, 
or held their offices at the will of the Legislature?" 1 
And Robert G. Harper said that: "One great object 
in allowing citizens of different States to sue in the 
Federal Courts was to obtain a uniformity of decision 
in cases of a commercial nature. The most numerous 
and important class of these cases, and the class in 
which it is most important to have uniform rules and 
principles, is that of insurance cases. They are almost 
wholly confined to corporations, though most frequently 
in fact between citizens of different States." The 
Court held, however, that the Constitution did not 
recognize a corporation as a citizen, and that in order to 
confer jurisdiction on the Federal Courts all the stock- 
holders of the corporation must be averred to be citizens 
of a State other than that of the opposing party in the 
suit. As a result of this decision, the reports of the 
Supreme Court and of the Circuit Courts during the 

1 Adams wrote in his Memoirs, I, March 7, 1809 : "The ground which I was obliged 
to take appeared to the Court untenable, and I shortened my argument, from the 
manifest inefficacy of all that I said to produce conviction upon the minds of any 
of the Judges." 

The Aurora, Feb. 7, 1809, contained the following note from a Washington 
correspondent: "Mr. J. Q. Adams is come here to attend the Supreme Court, 
and a considerable number of strangers on the like business ; but as people are 
always ready to gulp down the marvellous a thousand stories were circulated on 
these arrivals, something like the stories circulated at Naples when Vesuvius 
rumbles — the only lava running here is the froth or saliva of British corruption, 
with a small discolouring of domestic treason and sedition." 



PENNSYLVANIA AGAINST THE COURT 391 

first forty years thereafter reveal an almost com- 
plete absence of cases in which corporations (other 
than banking and insurance) were litigants; and 
the development of a body of corporation law by the 
Federal Courts was postponed to a late date in their 
history. 

While this case has been noted in the law chiefly for 
the technical point of jurisdiction thus decided, its 
real historical interest lies in a fact hitherto unnoted. 
The case had been intended, in its inception, as a test 
case on which to obtain the opinion of the Court as to 
the right of a State to tax the Bank of the United States. 
It was an action for conversion brought against a tax 
collector and a sheriff of Georgia, who, under the State 
statute of 1805 taxing the branches of the Bank, had 
entered its premises and carried off $2004 in silver in 
payment of the tax. The case, therefore, presented 
the precise questions which were argued and decided, 
ten years later, in McCulloch v. Maryland — the right 
of the State to tax a Federal agency and the power of 
Congress under the Constitution to charter the Bank. 
Judge William Johnson had ruled in the Circuit Court 
that there was not the necessary diverse citizenship to 
give that Court jurisdiction ; but it appears that he was 
evidently conscious of the fact that the Bank might 
not be able to obtain fair treatment in the State Courts, 
for he said : "It is true that this view of the subject may 
expose this valuable Institution to some embarrassment, 
and it is to be regretted that it cannot be better guarded. 
It is to be hoped that a just and temperate idea of the 
true policy of the individual States, with its real and 
extensive importance to the Union, will always afford it 
ample protection. . . . We are happy in the under- 
standing that this decision is to be reviewed in the Su- 
preme Court. Its importance in every point of view 



392 THE SUPREME COURT 

entitles it to the highest notice." 1 Had the Court 
sustained the jurisdiction of the Circuit Court and de- 
cided the important constitutional question involved, 
the course of legal history would have been radically 
changed. McCulloch v. Maryland would have been 
anticipated by ten years; Congressional power to 
charter a bank would have been upheld ; the long de- 
bates in Congress between 1810 and 1816 over this 
power would not have occurred ; the charter of the old 
Bank would probably have been renewed ; the tre- 
mendous difficulties in the financing of the War of 
1812 would have been obviated; the feelings of State 
jealousy over the denial of the State powers of taxation 
would have been less vigorous than they were ten years 
later, after a series of State laws had been set aside by 
the Court. Truly, this decision in the Deveaux Case 
had a momentous effect, unforeseen by the Court at the 
time it was rendered by Chief Justice Marshall. 

The other case decided at this 1810 Term, which 
aroused vivid and excited interest throughout the coun- 
try and vitally affected the course of political and eco- 
nomic history, was Fletcher v. Peck, 6 Cranch, 87. Not 
only was this the first case in which the Court had held 
a State law unconstitutional, but it also involved legis- 
lation which had been the subject of bitter controversy 
and violent attack for over fifteen years in the State 
of Georgia and in the Congress of the United States. 
In 1795, the Georgia Legislature had granted to four 
land companies, the Georgia Company, the Georgia 
Mississippi Company, the Upper Mississippi Company 
and the Tennessee Company, a tract of twenty million 
acres (afterwards found to contain thirty-five million) 
for the sum of $500,000. The enactment of the statute 

1 National Intelligencer, July 1, 2, 1808 ; Charleston Courier, June 14, 1808 ; 
Bank v. Deveaux, HalVs American Law Journal (1808), I, 263. 



PENNSYLVANIA AGAINST THE COURT 393 

making this grant had been so clearly obtained by fraud 
and bribery that the indignation in Georgia was intense ; 
the sale was revoked by the next Legislature in 1796 ; 
the Act of 1795 was publicly burned, and all evidence 
of its passage was expunged from the records. The 
Georgia Company had meanwhile, however, sold its 
tract to a New England Mississippi Company composed 
largely of Boston capitalists, which, in turn, sold ex- 
clusively to investors in New England and the Middle 
States. These purchasers of land contended that the 
Act of 1796 could not legally annul vested titles; but 
Georgia insisted that titles based on the original fraudu- 
lent statute were invalid. In 1802, Georgia ceded to the 
United States its claim to these lands and the fight was 
transferred to the floor of Congress. For six years, 
from 1803 to 1809, the efforts of the Yazoo claimants, 
represented by Gideon Granger of Connecticut, then 
Postmaster-General, and Perez Morton, a leading 
Jeffersonian of Massachusetts, to secure compensation 
for the lands purchased by them were opposed with 
vituperative violence and with success by John Ran- 
dolph of Virginia. 1 Finally, the claimants decided to 
test their rights in the Federal Courts, and a suit was 
arranged between a vendee and vendor of a parcel of 
these lands, based on an alleged breach of warranty of 
title. This case, Fletcher v. Peck, came first before the 

1 Relative to the facts involved in the Yazoo Case, see the Yazoo Land Companies, 
by Charles H. Haskins, Amer. Hist. Ass. Papers (1891), V; James Wilson and the 
so-called Yazoo Frauds, by M. C. Klingelsmith, U. of P. Law Rev. (1908), LVI; 
Report on Georgia Land Claims, 7th Cong., 2d Sess., 1342. See also Brown v. Gilman, 
4 Wheat. 255 ; Brown v. Jackson, 7 Wheat. 218 ; Hughes v. Blake, 6 Wheat. 453. 

An unsuccessful attempt to test the Georgia statute's validity by means of a 
suit based on warranty of title occurred in Bishop v. Nightingale at the Spring 
session in 1802 in the United States Circuit Court for the 2d Circuit. See New 
York Evening Post, June 30, 1802. It seems to have hitherto escaped attention. 
The Georgia statute was held to be in violation of the Federal Constitution by the 
Massachusetts Supreme Court, as early as 1799. See opinion published in Colum- 
bian Centinel, Oct. 9, 1799, and republished in 1917 in 226 Mass. 618, and see also 
History of the American Bar (1911), by Charles Warren, 270, note. 



394 THE SUPREME COURT 

Court at the 1809 Term, when it was presented by 
Luther Martin against Robert G. Harper and John 
Quincy Adams ; and an interesting picture of the 
argument and of its interruption by the inauguration 
of President Madison was given by Adams in his diary : 

March 2. I argued the case of Fletcher and Peck, on 
the part of the latter, and occupied the whole day, from 
eleven o'clock until past four in the afternoon. I was 
under the usual embarrassments which I have always expe- 
rienced in public speaking, and, notwithstanding all the 
pains I have taken, not sufficiently clear in my arrange- 
ment and method. In point of effect, I was apparently 
not successful, and in my exposition dull and tedious al- 
most beyond endurance. The Court did, however, hear 
me through. Mr. Harper follows me tomorrow. . . . 

March 3. Mr. Harper argued the case of Fletcher and 
Peck, on the part of Mr. Peck. He was between two and 
three hours. Mr. Martin then began his argument in the 
close and went partly through it. He is to finish tomor- 
row. The Court adjourned to meet at eleven o'clock in 
the morning. 

March 4. Going up to the Capitol, I met Mr. Quincy, 
who was on his way to Georgetown to get a passage in 
Baltimore. The Court met at the usual hour, and sat 
until twelve. Mr. Martin continued his argument until 
that time, and then adjourned until two. I went to the 
Capitol and witnessed the inauguration of Mr. Madison as 
President of the United States. The House was very much 
crowded, and its appearance very magnificent. He made a 
very short speech, in a tone of voice so low that he could 
not be heard, after which the official oath was administered 
to him by the Chief Justice of the United States, the other 
four Judges of the Supreme Court being present and in 
their robes. After the ceremony was over, I went to pay 
the visit of custom. The company was received at Mr. 
Madison's house ; he not having yet removed to the Pres- 
ident's house. Mr. Jefferson was among the visitors. - The 
Court had adjourned until two o'clock. I therefore re- 
turned to them at that hour. Mr. Martin closed the 



PENNSYLVANIA AGAINST THE COURT 395 

argument in the cause of Fletcher and Peck; after which 
the Court adjourned. I came home to dinner, and in 
the evening went with the ladies to a ball at Long's, in honor 
of the new President. The crowd was excessive — the 
heat oppressive, and the entertainment bad. 

March 7. In the case of Fletcher and Peck also, he 
(the Chief Justice) mentioned to Mr. Cranch, and Judge 
Livingston had done the same to me on Saturday night 
at the ball, the reluctance of the Court to decide the case 
at all, as it appeared manifestly made up for the purpose 
of getting the Court's judgment upon all the points. 1 And 
although they have given some decisions in such cases, they 
appear not disposed to do so now. . . . 

March 11. This morning the Chief Justice read a writ- 
ten opinion in the case of Fletcher and Peck. The judg- 
ment in the Circuit Court is reversed for a defect in the 
pleadings. With regard to the merits of the case, the 
Chief Justice added verbally, that, circumstanced as the 
Court are, only five Judges attending, there were difficulties 
which would have prevented them from giving any opinion 
at this Term had the pleadings been correct. . . . 

The case, thus decided on a point of pleading at the 
1809 Term, was re-argued at the 1810 Term, Joseph 

1 Judge Johnson in his dissenting opinion stated : " I have been very unwilling 
to proceed to the decision of this cause at all. It appears to me to bear strong 
evidence, upon the face of it, of being a mere feigned case. It is our duty to decide 
on the rights but not on the speculations of parties. My confidence, however, in 
the respectable gentlemen who have been engaged for the parties, has induced 
me to abandon my scruples, in the belief they would never consent to impose a 
mere feigned case upon this Court." This phase of the case was, nevertheless, 
hotly attacked by Congressman Farrow of South Carolina, in a debate in the 
House, March 23, 1814, who said : "The case before the Court was a feigned issue 
made up between Fletcher and Peck, with the aid of their counsel, for the purpose 
of obtaining a judgment of the Court against Fletcher, the plaintiff. If the plain- 
tiff had have gained the action, the fifty millions of acres of land would have been 
lost. Notwithstanding the great zeal of plaintiffs to gain their suits, they often- 
times are disappointed ; but I never did hear of one who wished to lose his suit, but 
what he was by some means accommodated. I never did see a Judge who had 
talents and ingenuity enough to overrule and defeat both parties and their attorneys, 
and award judgment to the plaintiff, contrary to their united efforts Any honor- 
able gentleman that will give himself the trouble to look into this case must see 
that the deed from the defendant to the plaintiff, which contains the covenant, the 
ground of the action, was a feigned deed to enable them to make up the issue. The 
novelty of the covenant contained in the deed is worth seeing; nothing like it has 
ever appeared to us before." 13th Cong., 2d Sess., 189C; J. Q. Adams, II, 



396 THE SUPREME COURT 

Story of Massachusetts taking Adams' place as one of 
the counsel, the latter having been made Minister to 
Russia. On March 16, 1810, Chief Justice Marshall 
delivered the opinion of the Court, sustaining the 
contentions of the Yazoo claimants, and holding the 
Repeal Act of the Georgia Legislature of 1796 to be 
unconstitutional, on the ground that it impaired the 
obligation of a contract, so far as it attempted to annul 
grants of land made under the earlier statute. As this 
was the first case in which the Court had held a State 
statute to violate the provisions of the United States 
Constitution, Marshall, at the very outset of his opinion, 
made clear the attitude in which the Court approached 
a case of this description. "Whether a law be void for 
its repugnancy to the Constitution," he said, "is, at all 
times, a question of much delicacy, which ought seldom, 
if ever, to be decided in the affirmative in a doubtful 
case. ... It is not on slight implication and vague 
conjecture that the Legislature is to be pronounced 
to have transcended its powers, and its acts to be con- 
sidered as void. The opposition between the Constitu- 
tion and the law should be such that the Judge feels a 
clear and strong conviction of their incompatibility 
with each other." 1 The decision of the Court, that a 
grant made under a legislative act was a contract as 
that word was used in the Constitutional provision 
forbidding a State to impair the obligation of contracts, 
surprised the public in general, but not the Bar ; for 
the leading jurists in the country had long considered 
the Georgia statute clearly unconstitutional. Fifteen 
years before, Alexander Hamilton had given a formal 
opinion to this effect, stating that the provisions in the 
Constitution forbidding impairment of obligation of 

1 The decision was published in full in many newspapers, particularly in the 
South. See Richmond Enquirer, April 5, 6, 1810; Savannah Republican, April 10, 
12. 14, 1810. 



PENNSYLVANIA AGAINST THE COURT 397 

contract " must be equivalent to saying that no State 
shall pass a law revoking, invalidating or altering a 
contract. Taking the terms of the Constitution in 
their large sense, and giving their effect according to the 
general spirit and policy of its provisions, revocation 
(by the State) is contrary to the Constitution and there- 
fore null, and the Courts of the United States in cases 
within their jurisdiction will be likely to pronounce it 
so." Robert G. Harper had also given an opinion to 
the same effect, which had been widely circulated. 1 
Notwithstanding these opinions, the decision of the 
Court fell with a stunning shock upon the State-Rights 
politicians and enhanced their hostility towards the 
judicial power. They failed to see that the doctrine 
established by the Court was, in fact, a strong bulwark 
to State authority ; for if the Court had acceded to the 
contention that a State statute could be invalidated by 
a Federal tribunal, on allegations of fraud or bribery 
in its passage, a wide door would have been opened for 
the attack upon State legislation in countless instances 
in subsequent years. Against so dangerous an exten- 
sion of its jurisdiction, the Court firmly set its face 
and said: "This solemn question cannot be brought 
thus collaterally and incidentally before the Court. It 
would be indecent in the extreme, upon a private con- 
tract between two individuals, to enter into an enquiry 
respecting the corruption of the sovereign power of a 
State"; and it pointed out further that even land 
titles derived by fraud were good, when set up by a bona 
fide purchaser without notice. Robert G. Harper, 
long before, had taken the same position, saying: "If 
the Legislature have exceeded the bounds of its author- 
ity, its acts are null ; but the motives of its members can 

1 The Yazoo Question, by Robert G. Harper, Aug. 3, 1796; Hall's American 
Law Journal (1814), V, quoting Hamilton's opinion of March 25, 1796. 



398 THE SUPREME COURT 

never be questioned, without striking at the root of law, 
and introducing scenes of confusion a thousand times 
more intolerable than any evils which it could be in- 
tended to remedy." It is a singular fact that the 
very men who have always opposed the Court's right 
to determine the constitutionality of statutes, have 
attacked the Court for failing to assume to exercise the 
much more extensive and the more dangerous power of 
inquiry whether a statute was enacted through fraud, 
bribery or corruption. 1 Nothing could more certainly 
bring the Court into violent conflict with the Legisla- 
tive branch of the Government than any such judicial 
attempt to investigate its motives, and to set aside a 
statute, upon a judicial finding of corruption. 

That the decision should have been received in 1810, 
however, with violent opposition from the Representa- 
tives of Georgia in Congress was only natural ; and a 
furious fight raged for four years over measures intro- 
duced to compromise with the Yazoo claimants. 2 "It 
is a decision which the mind of every man attached to 
Republican principles must revolt at," said one Con- 
gressman ; while another delivered a speech full of 
invective against the Judiciary and terming the decision 
as "shocking to every free government and sapping the 
foundation of all of our Constitutions." 

The speculators had hunted up a maxim of the common 
law or equity courts of England, and the Judges wielded 

1 History of the Supreme Court of the United States (1912), by Gustavus Myers, 
262, 548. 

2 11th Cong., 2d Sess., April 17, 1810; ibid., 3d Sess., Dec. 17, 1810, 414 et seq., 
for debate on the measures to be taken for the Yazoo Claimants in view of the 
Court decision. See also 12th Cong., 2d Sess., 856, 1069, Jan. 20, Feb. 15, 1813; 
13th Cong., 2d Sess., 1858 et seq., March 8, 9, 15, 21, 22, 23, 24, 25, 1814. 

Although the Boston newspaper, the Columbian Centinel, had said March 24, 
1810, on the decision of the case : "This judgment will have the effect to restore to 
a number of our distressed fellow citizens the benefits of claims from which they 
have for years been unjustly debarred", it was not until the year 1814, that Con- 
gress finally enacted the bill compromising the claims by a part payment. 



PENNSYLVANIA AGAINST THE COURT 399 

it for their benefit and to the ruin of the country — the 
maxim that third purchasers without notice shall not be 
affected by the fraud of the original parties. Thus, sir, 
by a maxim of English law are the rights and liberties of 
the people of this country to be corruptly bartered by their 
representatives. ... It is proclaimed by the Judges, 
and is now to be sanctioned by the Legislature, that the 
Representatives of the people may corruptly betray the 
people, may corruptly barter their rights and those of their 
posterity, and the people are wholly without any kind of 
remedy whatsoever. It is this monstrous and abhorrent 
doctrine which must startle every man in the nation, that 
you ought promptly to discountenance and condemn. . . . 

While the other States in the Union did not entertain 
the same resentment at the Court's decision in Fletcher 
v. Peek which was felt in Georgia, the fact that a law 
of a State had for the first time been declared invalid by 
the Court impressed upon the public mind the impor- 
tant part which that tribunal w 7 as to play in the develop- 
ment of the Government. 



CHAPTER NINE 

JUDGE STORY, THE WAR AND FEDERAL SUPREMACY 

1810-1816 

After the Court adjourned in 1810, it became known 
that Judge Cushing was dying. He was an old man 
of seventy-eight ; he had served for twenty-one years 
on the Court, and for the past few years had been 
somewhat senile. 1 When his death occurred on Sep- 
tember 13, 1810, the choice of his successor became a 
matter of National interest to the country and of polit- 
ical interest to the party then in power. Thereto- 
fore, except at the time of Chief Justice Rutledge's 
appointment, there had been little public interest in 
the appointment of Supreme Court Judges and almost 
no attention had been paid by the public press to the 
question. Now, however, the Federal Judiciary had 
become a live issue in connection with problems of 
the day. It was seen that the status and rights of a 
United States Bank in Georgia, the rights of land 
claimants in Kentucky and Virginia, the regulation of 
commerce through embargoes, non-intercourse laws, 
steamboat monopolies, and many other questions on 

1 For the best account of Cushing, see article by Chief Justice Arthur P. Rugg 
in Yale Law Journ. (1920), XXX; the New England Palladium, Sept. 18, 1810, 
said : "As a Judge, the deceased united the learning of the scholar with the science 
of the lawyer. He sought truth on whatsoever side she was to be found — alike 
regardless of the frowns of the great or the clamour of the many. . . . He was 
characterized for possessing uncommon patience of hearing, quickness of perception 
and deep investigation ... ; in pronouncing the last judgment of the law his 
manner was peculiarly interesting and impressive." 

David Howell of Rhode Island wrote to Madison, Nov. 26, 1810, that the Fed- 
eralists had prevailed on Judge Cushing " to retain his office, for several years 
under the failure of his powers, lest a Republican should succeed bim." Madison 
Papers MSS. 



STORY, WAR AND FEDERAL SUPREMACY 401 

which political antagonisms were arising — all might 
be brought before the Court for final decision. On 
Cushing's death, the Court then consisted of three 
Federalists — Marshall, Chase and Washington, and 
three Republicans (all appointed by Jefferson) — John- 
son, Todd and Livingston. The future trend of the 
Court's decisions might largely depend on the character 
of the man who should be appointed by President 
Madison to fill Cushing's place. Five Republicans 
from Massachusetts were prominently mentioned as 
possible nominees — Levi Lincoln (Attorney-General 
of the United States under Jefferson), Perez Morton, 
George Blake (United States Attorney), John Quincy 
Adams (who had recently resigned as Senator), Ezekiel 
Bacon (a Congressman), Joseph Story (a former Con- 
gressman, now Speaker of the State House of Repre- 
sentatives). Connecticut men strongly urged the ap- 
pointment of Gideon Granger of that State (Jeffer- 
son's Postmaster-General). No one was more active 
in making recommendation to Madison for the vacancy 
than Jefferson himself. For the past seven years, his 
antipathy to Chief Justice Marshall had been growing 
more and more bitter. Only four months before, he 
had written to Madison, referring to "the rancorous 
hatred which Marshall bears to the Government of his 
country" and to "the cunning and sophistry within 
which he is able to enshroud himself" ; and he had said : 
"His twistifications of the law in the case of Marbury, in 
that of Burr, and the late Yazoo case, show how dexter- 
ously he can reconcile law to his personal biases." * 
Moreover, there was pending in the Circuit Court at 
Richmond a suit brought by Edward Livingston against 

1 Jefferson, XI, letter of Jefferson to Madison, May 25, 1810. To John Tyler, 
Jefferson wrote, May 26, 1810, that in the hands of Marshall, "the law is nothing 
more than an ambiguous text, to be explained by his sophistry into any meaning 
that may subserve his personal malice." 



402 THE SUPREME COURT 

Jefferson himself, involving an action taken when 
President in seizing the Batture at New Orleans, in 
which suit he felt confident that Marshall would decide 
against him. 1 "Were this case before an impartial 
Court, it would never give me a moment's concern," 
he wrote to William B. Giles, "but Livingston would 
never have brought it in such a Court. The deep- 
seated enmity of one Judge and utter nullity of the 
other, with the precedents of Burr's case, lessen the 
confidence which the justice of my cause would other- 
wise give me. Should the Federalists, from Living- 
ston's example, undertake to harass and run me down 
with prosecutions before Federal Judges, I see neither 
rest nor safety before me." To Attorney-General 
Rodney he wrote that "the feelings of the Judge are 
too deeply engraven to let this distinction stand in the 
way of getting at his victim"; and to Secretary of 
the Treasury Gallatin, he wrote : "The Judge's inveter- 
acy is profound, and his mind of that gloomy malignity 
which will never let him forego the opportunity of 
satiating it on a victim," so that an appeal to the 
Supreme Court would be imperative. Taking this 
highly unjustifiable view of Marshall's character and 
believing, as he said, that "it will be difficult to find 
a character of firmness enough to preserve his in- 
dependence on the same Bench with Marshall", Jeffer- 
son was exceedingly anxious that no man should be 
appointed whose sturdy republicanism was open to 
any question. 2 His first choice for the position was 

1 Jefferson's suspicions of Marshall's fairness were unjustified; he won the case 
on a point of jurisdiction. For articles on this celebrated Batture controversy, see 
Hall's American Law Review (1808), II (1816), V; Life of Thomas Jefferson (1858), 
by Henry S. Randall, III ; Letters and Times of the Tylers (1884), by Lyon G. Tyler. 

2 Jefferson Papers MSS, letters to William B. Giles and John W. Eppes, Nov. 12, 
1810; Jefferson, XI, letters to Rodney, Sept. 25, 1810, and to Gallatin, Sept. 
27 : "What the issue of the case ought to be, no unbiased man can doubt. What 
it will be, no one can tell. . . . His decision, his instructions to a jury, his allow- 
ances and disallowances and garblings of evidence must all be the subjects of appeal. 



STORY, WAR AND FEDERAL SUPREMACY 403 

Levi Lincoln, whose "pure integrity, unimpeachable 
conduct, talents and republican principles leave him 
now, I think, without a rival." To Gallatin he wrote : 

I observe old Cushing is dead. At length, then, we have a 
chance of getting a Republican majority in the Supreme 
Judiciary. For ten years that Branch has braved the spirit 
and will of the Nation after the Nation has manifested its 
will by a complete reform in every branch depending on 
them. The event is a fortunate one, and so timed as to be 
a Godsend to me. I am sure its importance to the Nation 
will be felt, and the occasion employed to complete the 
great operation they have so long been executing, by the 
appointment of a decided republican, with nothing equiv- 
ocal about it. But who will it be? . . . Can any other 
bring equal qualifications to those of (Levi) Lincoln ? I 
know he was not deemed a profound common lawyer, but 
was there ever a profound common lawyer known in one 
of the Eastern States? There never was, nor never can 
be, one from these States. The basis of their law is neither 
common nor civil ; it is an original, if any compound can 
be so called. Its foundation seems to have been laid in 
the spirit and principles of Jewish law, incorporated with 
some words and phrases of common law, and an abundance 
of notions of their own. This makes an amalgam sui gene- 
ris; and it is well known that a man first and thoroughly ini- 
tiated into the principles of one system of law can never 
become pure and sound in any other. Lord Mansfield was 
a splendid proof of this. Therefore, I say there never was, 
nor never can be a profound common lawyer from those 
States. . . . Mr. Lincoln is, I believe, considered as 
learned in their laws as any one they have. Federalists 

I consider that as my only chance of saving my fortune from entire wreck. 
And to whom is my appeal? From the Judge in Burr's case to himself and his 
associate Judges in the case of Marbury v. Madison. Not exactly however, I 
observe old Cushing is dead." 

Other Republicans also took a prejudiced view of Marshall in this case, and 
Robert Smith (Secretary of State) wrote to Jefferson, Oct. 1, 1810, suggesting his 
impeachment: "Should it happen that the plea to the jurisdiction be overruled 
and the Judge should declare himself competent to examine the opinion of the Chief 
Magistrate of the Nation and to adjudge him responsible in his property for an 
opinion, most assuredly such Judge will be held answerable to the Grand Inquest 
of the Nation . ' ' Jefferson Payers MSS. 



404 THE SUPREME COURT 

say that Parsons is better ; but the criticalness of the pres- 
ent nomination puts him out of the question. 

To President Madison, Jefferson wrote a long letter 
in which he said that "another circumstance of 
congratulation is the death of Cushing"; that the 
Judiciary had long bid defiance to the people's will, 
"erecting themselves into apolitical body to correct what 
they deem the errors of the Nation. The death of 
Cushing gives an opportunity of closing the refor- 
mation, by a successor of unquestionable republican 
principles"; and that the appointment of Lincoln, 
because of his " firm republicanism and known integ- 
rity, will give compleat confidence to the public 
in the long desired reformation of their Judiciary." * 
Attorney-General Rodney also wrote to Madison sup- 
porting Lincoln. 2 If any other man were to be selected, 
Jefferson considered Gideon Granger the best man for 
the place. "His abilities are great; I have entire 
confidence in his integrity." Granger, though residing 
in Connecticut and out of the Circuit, was a very active 
candidate for the position, and was supported by the 

1 Jefferson, XI, letters to Rodney, Sept. 25, 1810, to Gallatin, Sept. 27, to Mad- 
ison, Oct. 15. To Gideon Granger, the Postmaster General, he wrote, Oct. 
22, that he considered "the substituting in the place of Cushing, a firm unequivo- 
cating republican, whose principles are born with him, and not an occasional ingraft- 
ment, as necessary to compleat that great reformation in our government to which 
the Nation gave its fiat ten years ago." 

a Madison Papers MSS, letter of Rodney, Sept. 27, 1810: "The late Gov. Sulli- 
van would have been a suitable person to have succeeded Judge Cushing. So is 
the late Gov. Lincoln, if his health will admit of it, tho I have understood he is 
likely to lose his eyesight. He is a sound lawyer, and what is more, an upright 
honest man. I fear Bidwell has injured himself too much to be thought of." 
See also Jefferson Papers MSS, letter of Rodney, Oct. 6, 1810: "Before I received 
your favor of Sept. 25, I had written to the President decidedly in favor of Mr. 
Lincoln. Mr. Gallatin unites with me in opinion it would be a great blessing to 
this country to have a majority of Republicans on the bench of the Supreme Court." 

Barnabas Bidwell, above referred to, as to whom Jefferson had written to Galla- 
tin that " the misfortune of Bidwell removes an able man from the competition", 
had been Attorney-General of Massachusetts, and becoming financially embarrassed, 
had been indicted, had fled the country and had had his name removed from the 
Bar roll. See William Plumer Payers MSS, letter to J. Q. Adams, Feb. 7, 1811. 



STORY, WAR AND FEDERAL SUPREMACY 405 

Vice-President (George Clinton), by Lincoln himself, 
by William Plumer of New Hampshire, and by many 
lawyers in the Circuit. He was a skillful and energetic 
politician and a shrewd lawyer, but his associations 
with the Yazoo land claimants (as their agent before 
Congress) were likely to render him unacceptable to the 
Southern and Western Senators. This objection, how- 
ever, he answered in a letter to Jefferson, saying : "Are 
the principal citizens of four States to be put under 
the ban of the Republic for a legal display and vindi- 
cation of what they conceive their rights? Where 
shall a Judge be found ? There is not a lawyer, whose 
residence is East of Delaware and whose talents and 
learning were valued, who has not given an opinion" ; 
and he pointed out that the four other candidates from 
Massachusetts were all also connected with the Yazoo 
claims — Morton, Blake, Adams and Story ; neither Ver- 
mont, New Hampshire nor Rhode Island, he asserted, 
could present any adequate or acceptable candidate. 1 
Of Massachusetts candidates other than Lincoln, 
George Blake, the United States Attorney for the past 
ten years, was the favorite candidate of the Bar. He 
was warmly supported by Gov. Elbridge Gerry, who 
wrote of his "professional character paramount to 
that of any person in the State who can be a candidate", 
of the "strenuous and successful support which he has 
officially and uniformly given to the Federal laws 

1 William Plumer wrote to Madison that: "I do not know any man in the First 
Circuit . . . that would give so much satisfaction as Mr. Granger. I have 
consulted a considerable number of the most reputable and influential Republicans 
in this Circuit and I am happy to add that their opinions fully coincide with my 
own." See Jefferson Payers MSS, letter of Granger Sept. 27, 1810 ; Granger Papers 
MSS, letters of Granger to Plumer, Oct. 21, 1810, Plumer to Granger, Oct. 30, 
Plumer to Madison, Oct. 30, Cutts to Plumer, Dec. 19. Jefferson wrote to Granger, 
Jan. 26, 1810 (see ibid.), expressing his "sense of the important aid I received from 
you in the able and faithful direction of the office committed to your charge. . . . 
It is a relief to my mind to discharge the duty of bearing this testimony to your 
valuable services." 



406 THE SUPREME COURT 

and Administration, and his firmness and decision on 
all great Republican points and measures", and of his 
statesmanlike qualities, "bold, firm and decisive on 
the one hand and on the other candid, just and liberal." l 
Jefferson, however, was inexorably opposed to Blake, 
writing to Madison that Blake was a Republican only 
in name, "never was one at heart", and that "his 
treachery to us under the Embargo should put him by 
forever." Perez Morton, as Granger wrote, was "an 
accomplished and amiable gentleman of good informa- 
tion", but he had been twenty years away from the 
Bar, until recently made State Attorney-General ; and 
Jefferson considered that he was too closely connected 
with Yazooism to be available, and that he was "infe- 
rior to both the others in every point of view." Story 
and Bacon were highly obnoxious to Jefferson because 
of their advocacy of the repeal of his pet Embargo Act 
in 1809; they "are exactly the men who deserted us 
in that measure and carried off the majority — the 
former unquestionably a tory, and both are too young." 2 

1 Madison Papers MSS, letter of Sept. 23, 1810; see also letter of May 17, 
1811. Gerry added: "Mr. Blake having lately married a very fine woman is 
become a remarkable domestic character well suited to the attentions and studies 
of a Judge." It is amusing to note that on this point, Granger had written to 
Jefferson as to Blake : "He is a man of fortune and lately married to the rich and 
gay youthful beauty of Vermont, Miss M — . I should think that he would not 
wish the sober, steady, prudent life which a Judge must lead, to have any influence 
in New England." 

2 To Henry Dearborn, Jefferson had already written, July 16, 1810, attacking 
Joseph Story of Massachusetts: "The Federalists, during their short ascendency 
have, nevertheless, by forcing us from the embargo, inflicted a wound on our interest 
which can never be cured, and on our affections which will require time to cicatrize. 
I ascribe all this to one pseudo-republican, Story. He came on (in place of Crown- 
inshield, I believe) and staid only a few days, long enough however to get complete 
hold of Bacon, who, giving in to his representations, became panic-struck and com- 
municated his panic to his colleagues, and they to a majority of the sound mem- 
bers of Congress. They believed in the alternative of repeal or civil war, and 
produced the fatal measure of repeal." 

It is uncertain whether Story knew, before the publication of Jefferson's letter 
twenty years later, of this epithet applied to him by Jefferson. He appears then 
to have deeply resented it, and he wrote in his autobiographical sketch in- 1831 : 
"I was persuaded (in 1809) that if the Embargo was kept on during the year, there 
would be an open disregard and resistance of the laws. Mr. Jefferson has stig- 



STORY, WAR AND FEDERAL SUPREMACY 407 

In Rhode Island, the Republican party was split 
into two factions, that headed by Governor Fen- 
ner and United States Attorney David Howell, favor- 
ing the United States District Judge, David L. 
Barnes ; and the other section, with whom many 
Federalists were acting, supporting Asher Robbins. 1 

To Jefferson's early letters Madison replied promptly, 
October 19, 1810, saying that the vacancy was "not 
without a puzzle in supplying it. Lincoln obviously is 
the first presented to our choice, but I believe he will 
be inflexible in declining it. Granger is working hard 
for it. His talents are, as you state, a strong recom- 
mendation ; but it is unfortunate that the only legal 
evidence of them known to the public, displays his 
Yazooism ; and on this, as well as some other accounts, 
the more particularly offensive to the Southern half of 
the Nation. His bodily infirmity, with its effect on 
his mental stability, is an unfavorable circumstance 
also. On the other hand, it may be difficult to find 
a successor free from objections of equal force. Neither 
Morton, nor Bacon, nor Story have yet been brought 
forward. And I believe Blake will not be a can- 
didate." 2 On the day after this letter, Madison wrote 
to Levi Lincoln, asking him to accept the position : 

I feel all the importance of filling the vacancy with a 
character particularly acceptable to the Northern portion 

matized me on this account with the epithet of 'pseudo-republican.' 'Pseudo- 
Republican', of course, I must be, as everyone was, in Mr. Jefferson's opinion, 
who dared to venture upon a doubt of his infallibility. ... It is not a little 
remarkable that many years afterwards, Mr. Jefferson took great credit to himself 
for yielding up, sua sponte this favorite measure, to preserve, as he intimates, New 
England from open rebellion. What in me was almost a crime, became, it seems, 
in him an extraordinary virtue." Story, I, 184. 

1 Madison Papers MSS, letters of David Howell, Nov. 26, 1810, Seth Wheaton, 
Dec, 1810, Asher Robbins, June 3, 1811, John Pitman, Jr., Oct. 24, 1811. Asher 
Robbins became United States Attorney in 1812 and United States Senator from 
Rhode Island in 1825. 

2 Madison, VIII, letters to Jefferson, Oct. 19, Dec. 7, 1810, to Lincoln, Oct. 20, 
Dec. 10. Madison Papers MSS, letter of Lincoln, Nov. 27, 1810. 



408 THE SUPREME COURT 

of our country, and as generally so as possible to the whole 
of it. With these views, I had turned my thoughts and 
hopes to the addition of your learning, principles and weight, 
to a Department which has so much influence on the course 
and success of our political system. I cannot allow myself 
to despond of this solid advantage to the public. I am 
not unaware of the infirmity which is said to afflict your eyes ; 
but these are not the organs most employed in the func- 
tions of a Judge; and I would willingly trust that the 
malady, which did not unfit you for your late high and 
important station, may not be such as to induce a refusal 
of services which your patriotism will, I am sure, be dis- 
posed to yield. If your mind should have taken an adverse 
turn on this subject, I pray that you will give it a serious re- 
consideration ; under an assurance that, besides the general 
sentiment which would be gratified by a favorable deci- 
sion, there nothing which many of your particular friends 
have more at heart, as important to the public welfare. 
As there are obvious reasons for postponing the appoint- 
ment till the meeting of the Senate, you will have time to 
allow due weight to the considerations on which the appeal 
is founded ; and it will afford me peculiar pleasure to learn 
that it has found you not inflexible to its object. 

Several months elapsed while Lincoln was consider- 
ing this offer, and meanwhile public rumor stated that 
Granger of Connecticut would be appointed. 1 Mad- 
ison, however, evidently had no intention of making 
such a choice, for he wrote to Jefferson: "Granger 
has stirred up recommendations throughout the East- 
ern States. The means by which this has been done 
are easily conjectured, and outweigh the recommenda- 
tions themselves. The soundest Republicans of New 
England are working hard against him as infected with 
Yazooism and intrigue. They wish for J. Q. Adams, 
as honest, able, independent and untainted with such 
objections. There are others, however, in the view of 

1 The Hartford Courant, Dec. 26, 1810, stated definitely that Granger was to be 
appointed. 



STORY, WAR AND FEDERAL SUPREMACY 409 

the Southern Republicans ; tho' perhaps less formi- 
dable to them than Yazooism on the Supreme Bench. 
If there be other candidates, they are disqualified, 
either politically, morally, or intellectually. Such is the 
prospect before me, which your experience absolutely 
understands." 1 

Finally, Lincoln decided that, owing to his advanced 
age and defective eyesight, he must decline the Presi- 
dent's offer, and he wrote, November 27, expressing his 
appreciation of the honor but stating his inability to ac- 
cept, and adding that: "The friends to the Union, as 
well in Rhode Island and New Hampshire as here, feel 
a great solicitude on the present occasion. Would to 
Heaven there was some character, whose p^-eminent 
talents, virtues and tried services, excluding all com- 
petition, left to you only the formal but pleasing duty 
of a nomination — some character with the requi- 
site intelligence, but both blind and deaf — blind to the 
approaches of cabals, factions and party — deaf, deaf 
as an adder, to the suggestions of friends, ambition 
or prejudice, and to every other voice, however at- 
tuned, except to the voice of reason, patriotism, law, 
truth and justice." Disregarding this declination, 
Madison persisted in sending in Lincoln's name to the 
Senate on January 2, 1811, and he was confirmed the 
next day. But though strongly urged to accept by 
Attorney-General Rodney, who wrote that "in these 
times an honest and enlightened man, an able and 
upright lawyer, will be a great acquisition; the law, 
like the providence of God, should watch with an equal 
and impartial eye over all ; this I am sure would be the 

1 Writing to Jefferson, Jan. 25, 1811, William Duane, speaking of Madison's 
failure to appoint Granger to the Bench, said : "That man Granger, disappointed 
of being nominated as a Judge — and he is better adapted for the ulterior office of 
Executive Justice — menaces to blow up the administration of Mr. Madison and 
he has some of his schemes now in motion for that effect." Mass. Hist. Soc. 
Proc. 2d Series, XV. 



410 THE SUPREME COURT 

rule of your conduct," Lincoln felt obliged to reiter- 
ate his decision to decline the appointment. 1 Had he 
accepted, the future history of the Court and of 
American law would have been radically changed ; for 
though an exceedingly able lawyer, he was a strong 
partisan Republican, the subject of constant Feder- 
alist attack, and "he would have been a thorn in the 
flesh of Marshall." 2 

On receiving Lincoln's declination, President Mad- 
ison amazed the country by nominating to the posi- 
tion, on February 4, 1811, Alexander Wolcott, a prom- 
inent Republican political leader of Connecticut, a 
man of somewhat mediocre legal ability, who had 
served for many years as collector of customs. 3 "The 
Supreme Court which ought to be in Term here can- 
not proceed," wrote a Washington correspondent. 
"The law requires four Judges to constitute a Court, 
and only Judge Marshall, Washington and Livingston 
are present. Had it not been for the foolish attempt 
to compliment Mr. Lincoln with an appointment, it 
had previously been ascertained he could not and would 
not accept, a Judge might long since have been ap- 
pointed and a quorum formed. But folly and in- 
consistency appear entailed on the administration 
of our country. At the instigation of Joel Barlow, the 
President has been induced to nominate to the Sen- 
ate, one Alexander Wolcott, commonly called the 

1 Madison Papers MSS, letters of Lincoln, Nov. 27, 1810, Jan. 20, 1811; Mass. 
Hist. Soc. Proc. 2d Series, XV. Rodney's letter began: "I received a letter from 
that truly great and good man, Mr. Jefferson, strongly recommending you for the 
vacant seat on the Bench; and soliciting my interference on the subject. My 
reply was that I had anticipated his wishes. I trust you will not decline the sit- 
uation, but promptly accept of it." Lincoln's commission was made out and 
actually sent to him. Ibid., letter of R. Smith, Secretary of State to Lincoln, 
Jan. 20, 1801. 

2 Mass. Hist. Soc. Proc. 2d Series, XV, 230-238, remarks of George F. Hoar. 

3 Timothy Pitkin wrote to Simeon Baldwin, Feb. 25, 1806, that Pierpont Edwards 
of Connecticut expected to succeed Judge Cushing. Life and Letters of Simeon 
Baldwin (1919), by Simeon E, Baldwin. 



STORY, WAR AND FEDERAL SUPREMACY 411 

State Manager of Connecticut. Even those most 
acquainted with modern degeneracy were astounded 
at this abominable nomination. The Senate were 
appalled." 1 "It has excited the astonishment of 
even Democrats with us, and will tend, even among 
them, to bring into contempt the President of the 
United States," wrote James Hillhouse to Pickering. 2 
" We hope that even in the ranks of democracy, a man 
might have been found, whose appointment would 
have been less disgusting to the moral sense of the 
community, and whose private virtues or legal knowl- 
edge might have afforded some security from his 
political depravity," said a violent Federalist paper. 3 
Another said: "We cannot conceive from what in- 
fluence such a nomination could arise ; that a man, 
barely qualified to discharge the duties of a justice of 
the peace in a country town, should be appointed to 
decide in the first instance upon commercial and le- 
gal questions of the greatest extent and consequence, 
and in a part of the United States where they so often 
arise and where so great law talents are essentially 
necessary, is a matter of wonder and astonishment to 
all parties, Republicans as well as Federalists." An- 
other Washington correspondent wrote: "The doors 
of the Senate were closed sometime this day on the 
nomination of Alec Wolcott, I suppose. They say 
poor Alec goes hard, and it is not yet ascertained 
whether he can be crowded through or not. The Dem- 
ocrats of Massachusetts stick up their noses at the 
appointment. The Speaker of the House, Mr. Bacon, 
and others are displeased with the appointment. The 

1 Columbian Centinel, Feb. 16, 20, 23, 1811. 

2 Pickering Papers MSS, XXIX, letter of Feb. 17, 1811. 

3 Connecticut Courant, Feb. 20, 1811 ; for several years, the columns of this paper 
had teemed with abuse of Wolcott. See especially ibid. , Sept. 28, 1808 ; New England 
Palladium, Feb. 15, 19, 22, 1811; New York Evening Post, Feb. 8, 11, 20, 1811. 



412 THE SUPREME COURT 

Federalists appear to care but very little about it. 
They stand by to see fair play." Other newspapers 
commented virulently on Wolcott's alleged personal 
habits and morals. All this flood of objurgation, 
however, was in fact due to Wolcott's vigorous en- 
forcement of the Embargo and Non-intercourse laws, 
and any active supporter of those measures would 
have met with similar denunciation from the Feder- 
alist opposition, who did not hesitate to resort to 
personal scurrility in their political attacks. 1 On 
the other hand, even the Republican friends of the 
President found it difficult to make any enthusias- 
tic defense of the nomination. Levi Lincoln wrote 
to Madison, expressing his indignation at the "obloquy 
heaped upon the candidate and the advocates of his 
appointment", and his assurance that he had for years 
been acquainted with Wolcott and had met few men 
46 of larger mind, of greater perception and discriminat- 
ing powers, of more steadfast and uniform adherence 
to the principles of the Union and arrangement of the 
General Government, . . . literary acquisitions." Yet 
when he approached the question of his merits and 
standing as a lawyer, Lincoln found himself hard 
pressed. " Whatever, therefore, may be his present 
attainments and legal habits, an industrious applica- 
tion to professional studies and official duties will 

1 The Connecticut Courant, Feb. 18, 1811, wrote: "For about ten years past, this 
man has been fattening upon an office, the emoluments of which were derived solely 
from commerce. Yet such is his hostility to the merchants, or such his devotion 
to the Continental system of Napoleon that in a public place in this City, a short 
time since, lie remarked 'that the merchants of this country had governed it long 
enough, that they must be put down, that every man who owned part of a 
sloop or a hogshead of molasses undertook to dictate measures of government, 
but if Congress were of his opinion, the merchants mighl all go to hell in their own 
way, and that the non-intercourse law would be vigorously enforced (if the British 
Orders in Council were not revoked) let the consequence* to the merchants be 
what they might.' Whether these sentiments or his lamblike temper, hjs win- 
ning manners, his moral character and his legal science were his principal recom- 
mendation for the high office to which he is nominated, we shall not attempt to 
decide." 



STORY, WAR AND FEDERAL SUPREMACY 413 

soon place him on a level at least — with his Associates," 
was all he could say. "His independence, firmness and 
patriotism in being thus a valuable acquisition to the 
Bench, will, I conceive, be peculiarly useful and sat- 
isfactory to the friends of the National Administration 
in this section of the Union." 1 Such negative testi- 
mony was not enough to satisfy the Senate that Wol- 
cott was fitted for the highest Court and it re- 
jected the nomination by a vote of nine to twenty -four 
— "to their immortal honor as men and statesmen," 
said a Federalist paper. And as was said later by a 
Rhode Island Congressman, "Mr. Madison was thus 
enabled to make good retreat and a more judicious 
selection." 2 "The President is said to have felt 
great mortification at this result," wrote John Ran- 
dolph. "The truth seems to be that he is President 
de jure only. Who exercises the of lice de facto I know 
not, but it seems agreed on all hands that 'there is 
something behind the throne greater than the throne 
itself.' . . . The Cabinet presents a novel spectacle 
in the political world, divided against itself, and the 
most deadly animosity raging between its principal 
members. What can come of it but confusion, mis- 
chief and ruin?" 3 In view of the fact, however, that 
Wolcott later gave public adherence to the doctrine 
that any Judge deciding a law unconstitutional should 
be expelled, as exercising usurped power, it was for- 
tunate for the course of American legal history, that 
he did not secure this position on the Supreme Bench. 4 
After the failure of this second attempt to fill the 
vacancy, the President was strongly urged to appoint 

1 Madison Papers MSS, letter of Lincoln, Feb. 15, 1811. 

2 11th Cong., 2d Sess., 622. The Aurora, Feb. 21, 1811, charged that Wolcott's 
defeat was due to the activates of the friend of Aaron Burr. 

3 Joseph H. Nicholson Papers, MSS, letter of Randolph to Nicholson, Feb. 14, 
1811; John Randolph (1882), by Henry Adams. 

4 See Connecticut in Transition (1918), by Richard J. Purcell, 397. 



414 THE SUPREME COURT 

Jeremiah Smith, the distinguished Chief Justice of 
New Hampshire, and one of the ablest lawyers in New 
England, who, though a strong Federalist, was not a 
bitter partisan. "In questions merely political, par- 
ties will prefer those of their own sect — but all are 
equally concerned in the able and upright admin- 
istration of justice," wrote Timothy Pickering in 
recommending Smith. "If the want of suitable qual- 
ifications cause erroneous judgments, it will be no 
consolation to a man that he suffers by the hand of a 
political brother. In one word, the dignity of the 
Supreme Court of the United States (hitherto main- 
tained in the appointment of Judge Johnson and Judge 
Livingston), the confidence of the citizens in the wis- 
dom and rectitude of its decision — and the welfare of 
the Union — require such an appointment ; and allow 
me to add that it is not a matter of indifference to 
your own reputation." ! 

Madison, however, was resolved to appoint a Re- 
publican ; and, as his third choice, he nominated John 
Quincy Adams (then Minister to Russia) on February 
22, 1811 ; and the Senate at once confirmed Adams 
by a unanimous vote. 2 The appointment was highly 

1 Pickering Papers MSS, XIV, 326, letter to Madison, Feb. 6, 1811. 

2 Mrs. Abigail Adams (his mother) had written to Adams, Jan. 20, of Lincoln's 
appointment, and that "the newspapers say he accepted only to keep the place 
warm for J. Q. Adams whenever he returns." To Mrs. Cushing (widow of the 
Judge), Mrs. Adams wrote, March 8, 1811 : "You will see by the publick papers 
that the President has nominated and the Senate unanimously appointed my son, 
as successor to your late and ever dear Friend, in his office as Judge ; altho I know 
by information received early in the session from Washington, that it was his 
wish to do so, I considered his absence as an insurmountable objection. I also 
knew what interest, what importunate interest, would be made for many candi- 
dates. The appointment was altogether unexpected both to the (Ex) President 
and to me; the unanimity with which it was assented to, and the general satis- 
faction which it appears to give to all parties, will, I hope and trust induce him to 
accept the appointment which so honorably calls him back to his native land and 
which I hope will shield him from that spirit of animosity which has so unjustly 
assailed him. It will place him out of reach of competition for office, which occa- 
sions so much envy and jealousy amongst all parties. I had rather have him hold 
the office of Judge, than that of any foreign embassy or even Chief Magistrate of 



STORY, WAR AND FEDERAL SUPREMACY 415 

acceptable to both political parties — the Centinel 
saying that it "gives much satisfaction in this quar- 
ter of the United States"; the Independent Chronicle 
becoming enthusiastic: "When the Bench of Justice 
shall be irradiated by worth and talents so un- 
usually great as those of Mr. Adams ; when vir- 
tue and patriotism so rare and so distinguished shall 
become the expounder and administrator of our laws, 
the Nation will indeed be blest, if his influence may 
have that weight which will be due to it in the Supreme 
Court of the country." Adams, however, declined 
the position, being, as he had written, "conscious of too 
little law" and also "too much of a political parti- 
san." Madison, greatly disappointed at his refusal, 
now waited for six months before taking any further 
steps. Finally on November 15, 1811, he sent to the 
Senate the name of Joseph Story of Massachusetts, 
and three days later, November 18, the Senate con- 
firmed the nomination. The facts surrounding this 
highly unexpected appointment remain a legal his- 
torical mystery. Story was only thirty-two years 
old, the youngest man then ever called to high judi- 
cial office; he had served but one term in Congress, 
and had been Speaker of the Massachusetts House of 
Representatives, but had held no judicial office. The 
motives which led Madison to choose this young law- 
yer are unknown. There is nothing in the published 
or available correspondence or in the newspapers of 
the day to show who either favored, indorsed or sup- 
ported Story for the position, nor is there anything 
to show that Madison had any personal acquaintance 
with him, or what were the arguments which pre- 

the United States. I think my dear friend, you will be gratified that the seat of 
your Friend so honorably held, and so faithfully discharged, will not be disgraced 
by his successor." J. Q. Adams Writings, TV, letter of April 10, 1811 ; Mass. Hist. 
Soc. Proc, XLIV, 527. 



416 THE SUPREME COURT 

vailed over Jefferson's repeated expressions of personal 
antipathy to Story. But as in so many other instances 
in the history of the United States when compara- 
tively unknown men have been raised to positions of 
high authority, the Nation was singularly fortunate 
in the event. Story's own reasons for accepting the 
position were interesting. 1 "Notwithstanding the emol- 
uments of my present business exceed the salary 
($3500), I have determined to accept the office," he 
wrote. "The high honor attached to it, the perma- 
nence of tenure, the respectability, if I may so say, of 
the salary, and the opportunity it will allow me to 
pursue, what of all things I admire, juridical studies, 
have combined to urge me to this result. It is also no 
unpleasant thing to be able to look out upon the polit- 
ical world without being engaged in it, or, as Cowper 
says : ( tis pleasant from the loop-holes of retreat, to 
gaze upon the world ! ' The opportunity ... of meet- 
ing with the great men of the nation, will be, I am 
persuaded, of great benefit to my social feelings, as 
well as intellectual improvement." 

1 Story, I, letter to Williams, Nov. 30, 1811 : "The salaries of the Justices were 
fixed at $3500 in 1789. An unsuccessful attempt was made to raise them in 1816, 
and a memorandum was prepared by Judge Story in which it was urged that 'the 
necessaries and comforts of life, the manner of living and the habits of ordinary 
expense, in the same rank of society, have, between 1789 and 1815, increased 
in price from one hundred to two hundred per cent. The business of the Judges 
of the Supreme Court, both at the Law Term in February and on the Circuits, has 
during the same period increased in more than a quadruple ratio and is increasing 
annually. ... By this increase of business the necessary expense of our Circuits 
is very much increased.' " Congress refused to act. In 1810, Judge Story was 
offered by Pinkney the opportunity to take over Pinkney's practice in Baltimore 
on resigning from the Bench. Pinkney's professional income was $21,000 per 
annum, and he stated that Story could safely calculate on $10,000. The offer 
was tempting, in view of the fact that a Judge's salary was only $3500. To the 
incalculable gain of the country, Story chose to resist the temptation. In 1819, 
Congress passed an act increasing the salaries to $5000. Prior to this increase, the 
National Intelligencer, Feb. 1, 1819, stated: "Judge Johnson, it is said, is about to 
resign his high office for one of less dignity, perhaps, but the emoluments of 
which are more adequate to the services rendered than those of a Judge 'of the 
Supreme Court " — the office thus referred to being that of collector of customs 
at Charleston. 



STORY, WAR AND FEDERAL SUPREMACY 417 

- The Democrats of Massachusetts were unenthu- 
siastic over the appointment; and Jefferson, who re- 
garded Story as a "pseudo-republican" because of 
his opposition to the Embargo Laws, was apprehen- 
sive, with considerable reason, as to his constitutional 
views. By the Massachusetts Federalists in general, 
the appointment of Story was received with ridicule 
and condemnation. "I remember my father's graphic 
account of the rage of the Federalists when ' Joe Story, 
that country pettifogger,' aged thirty-two, was made 
a Judge of our highest Court," wrote Josiah Quincy, 
Jr., and another Boston lawyer wrote later: "When 
we call to mind his youth, and remember how earnest 
and conspicuous he had been on the unpopular side in 
politics, it will not be a matter of surprise to learn that 
the news of his appointment fell with something like 
consternation upon the elder, the more apprehensive, 
and the more conservative portion of the people 
of New England. His merits as a lawyer could be 
scanned only by his professional brethren ; his sweet 
and generous nature could be appreciated only by his 
friends. The public knew him as an enthusiastic parti- 
san; and it is not too much to say that with many 
there was an apprehension that, in his hands, rights 
and property would hardly be safe." * 

Some Federalists, however, realized the true inde- 
pendence of character of the man, his devotion to prin- 
ciple and his ardent belief in the National Union. One 
of their papers wrote, on his election to Congress in 
1808, that : "Mr. Story is a gentleman who is well ac- 
quainted with the true interests of the country ; he 
possesses a mind too independent to succumb to that 
pernicious foreign influence which has too long given 

1 Figures of the Past (1883), by Josiah Quincy, Jr. ; Memoirs of Joseph Story 
(1868), by George S. Hillard. 

VOL. I — 14 



418 THE SUPREME COURT 

a fatal complexion to our publick councils. Though 
he may sometimes advocate principles and measures 
which a genuine Federalist would feel it a duty to 
his country to oppose, yet he will never submit to be- 
come a 'back-stairs' minion of Executive influence. . . . 
We believe that Mr. Story has seen enough to convince 
him that a local, circumscribed system of politicks 
has obtained a dangerous ascendency in the country, 
and that he will use due exertion to restore . . . that 
happy equilibrium, ... on the restoration of which 
the happiness and tranquillity of the Union essentially 
depend. We have seen Mr. Story, on occasions 
where our best institutions were in jeopardy, come 
forward with a praiseworthy independence, break 
the bonds of party connexion and display those abil- 
ities with which Providence has liberally endowed 
him for the public good." x This was a generous and 
accurate characterization to be made by a party op- 
ponent. Somewhat the same views were taken of 
Story by a few of the Federalist leaders ; and so bit- 
ter a partisan as George Cabot had written to Timothy 
Pickering, in 1808: "Mr. Joseph Story of Salem goes 
to Washington as solicitor for the Georgia claimants. 
Though he is a man whom the Democrats support, I 
have seldom if ever met with one of sounder mind on 
the principal points of National policy. He is well 
worthy the civil attention of the most respectable Fed- 
eralists ; and I wish you to be so good as to say so 
to our friend Mr. Quincy, and such other gentlemen as 
you think will be likely to pay him some attention" ; 



1 Boston Repertory, May 31, 1808, quoted in Charleston Courier, June 17, 1808. 
That Story had a National reputation even at this early time is seen from the 
fact that his election as Congressman had received special notice in newspapers 
in different parts of the country. See National Intelligencer, June 1, 1808 ; Charles- 
ton Courier; and his position in favor of a navy was the subject of editorials. See 
New York Evening Post, Jan. 11, 1809. 



STORY, WAR AND FEDERAL SUPREMACY 419 

while Harrison Gray Otis had written to Robert G. 
Harper at the same time : "I shall in a few days, give 
to a Mr. Story from this place a line of introduction 
to you, at his particular request, and will thank you 
to pay him such attentions as may be consistent with 
your convenience and leisure. He is a young man 
of talents, who commenced Democrat a few years since 
and was much fondled by his party. He discovered 
however too much sentiment and honour to go all 
lengths and acted on several occasions with a very 
salutary spirit of independence, and in fact did so 
much good that his party have denounced him, and 
a little attention from the right sort of people will be 
very useful to him and to us." * 

While the appointment of this Judge, destined to 
such future eminence, was in general objectionable 
to both political parties, the Federalist fear of his al- 
leged radicalism was wholly without foundation. But 
Jefferson's foreboding lest the new Judge should prove 
unsound on Republican political doctrines was justi- 
fied ; for within five years from the time of his ap- 
pointment, Story had become an ardent supporter of 
the constitutional doctrines laid down by Chief Jus- 
tice Marshall, and no Judge on the Court was more 
devoted to a liberal and Nationalistic interpretation 
of the Constitution and to the maintenance of Na- 
tional supremacy. 2 

1 Life and Times of George Cabot (1877), by Henry Cabot Lodge, 376, letter of 
Jan. 28, 1808. Harrison Gray Otis (1913), by Samuel E. Morison, I, 283, letter of 
Otis to Harper, April 19, 1807. 

2 In a review of Story's Commentaries on the Constitution, in North Amer. Rev., 
XXXVIII, in 1834, Edward Everett said: "Mr. Justice Story was of the Demo- 
cratic party and shared the general views of that party on questions of constitu- 
tional policies ; but with a mind of too legal a cast to run into wild revolutionary 
extremes. Coming upon the Bench with prepossessions of the character inti- 
mated, Mr. Justice Story rose immediately above the sphere of party ; and, with 
the ermine of office, put on the sacred robe of the Constitution and the law. Hence- 
forward, it became his duty, his desire, his effort, neither to strain the Constitu- 



420 THE SUPREME COURT 

In Story's case, as in so many other instances in 
the history of the Court, there was shown the utter 
futility of the expectations, frequently entertained by 
politicians, that the judicial decisions of a Judge would 
accord with his politics at the time of appointment 
to the Supreme Bench. Time and time again it has 
been proved — and to the great honor of the pro- 
fession — that no lawyer, whose character and legal 
ability would warrant his appointment to that lofty 
tribunal, would stoop to smirch his own record by sub- 
mitting his judgment to the political touchstone ; and 
no President has dared to appoint to that Court a law- 
yer whose character and ability could not meet the 
test. And so it has happened that when questions 
have arisen as to the effect to be given to the phrase- 
ology of the Constitution, Judges — Federalist and 
Anti-Federalist, Republican, Whig, Democratic and 
Republican — have united in so construing that in- 
strument as to preserve the supremacy of the Nation. 1 

That the appointment of a strong Union man upon 
the Supreme Bench was of vital necessity in 1811, and 
that his party designation was of little consequence were 
well illustrated by the fact that it was in this year that 
the leading Federalist Congressman from Massachu- 
setts voiced sentiments which were correctly termed 
"the first announcement on the floor of Congress of 

tion, nor to travel around it, on the loose popular maxims which guide the parti- 
sans, but to interpret it with impartiality and administer it with firmness." As 
to the development of Story's Nationalistic views, see Stnri/, I, letters of Feb. 22, 
Dec. 13, 1815. As early as 1818, he had reached *he point of concurring with the 
Federalist party in its belief in the constitutionality of the Alien and Sedition Laws. 
See letter of Story, Dec. 27, 1818, quoted in Morison's Harrison Gray Otis, I, 122. 
Buchanan wrote July 18, 1857: "No Whig President has ever appointed a 
Democratic Judge of the Supreme Court, nor has a Democratic President appointed 
a Whig; and yet the remark has been general that the Democrats appointed 
to this Bench, from the very nature of the constitution of the Court, have always 
leaned to the side of power and to such a construction of the Constitution as would 
extend the powers of the Federal Government." Works of James Buchanan (1909), 
VIII. 



STORY, WAR AND FEDERAL SUPREMACY 421 

the doctrine of secession." ! Speaking on January 
14, 1811, in opposition to the bill for the admission 
of Louisiana as a State, Josiah Quincy said : "I am com- 
pelled to declare it as my deliberate opinion that if 
this bill passes, the bonds of the Union are virtually 
dissolved ; that the States which compose it are free 
from their moral obligations, and that, as it will be 
the right of all, so it will be the duty of some, to pre- 
pare definitely for a separation, amicably if they can, 
violently if they must." Such views, it is true, 
were not shared by all Federalists, and John Adams 
wrote to Quincy, with sanity and vision: "Proph- 
ecies of division have been familiar in my ears for six 
and thirty years ; they have been incessant, but have 
had no other effect than to increase the attachment 
of the people to the Union. However highly we may 
think of the voice of the people sometimes, they not 
infrequently see further than you or I in many great 
fundamental questions." Nevertheless, it was of high 
importance to the survival of the American Union 
that its Judiciary at least should be so constituted 
as to prove a bulwark against the spread of such false 
constitutional doctrines. So evident had it become 
that it was the actions of the States, rather than of 
the Federal Government, which were then to be feared, 
that an ardent Democrat wrote about this time, de- 
ploring the fact that his party in the Federal Con- 
vention had "sowed the seeds of a premature dis- 
solution of the Constitution and of the American 
Confederacy. . . . They directed all their efforts and 
all their views towards guarding against oppression 
from the Federal Government . . . which they la- 
bored to cripple and chain down to prevent its ravages. 

1 History of the United States (1855), by Richard Hildreth, III, 226 ; Life of Josiah 
Quincy (1867), by Edmund Quincy, 206 et seq.; Works of John Adams, IX, letter 
of Adams to Quincy, Feb. 9, 1811. 



422 THE SUPREME COURT 

The State governments they regarded with the utmost 
complaisance, as the public protectors against this 
dreadful enemy of liberty. Alas ! Little did they 
suppose that our greatest dangers would arise from 
the usurpation of the State governments, some of which 
are disposed to jeopardize the General Government." * 

The long delay in the filling of the vacancy on the 
Court occasioned a singular episode in its history. On 
February 4, at the opening of the 1811 Term, 
only three of the seven Judges (Marshall, Livingston 
and Washington) were present. 2 By a provision of 
the Circuit Court Act of 1801 (retained in the Act of 
1802) if four of the Judges should not attend within 
ten days after the date of the beginning of the session, 
the Court was to be continued over to the next stated 
session. An attempt was now made in Congress to 
obviate the necessity of such an adjournment, by the 
introduction of a bill allowing Court to be held by 
three Judges, but without power to hear or determine 
cases from the District of Columbia or any other cases 
except by consent of parties or counsel. The bill 
passed the Senate, but was opposed and lost in the 
House largely owing to the efforts of Troup of Georgia, 
who said that five of the members of the Court had, 
as far as they could, given away eight millions of the 
public property (in the Yazoo Case) and he would not 
confide such power to a smaller number of Judges. 3 
Accordingly, the fourth Judge not having appeared 
in Washington on February 14, 1811, the Court was 
forced to adjourn without doing any business. Before 
the opening of the 1812 Term, another vacancy was 

1 The Olive Branch (Feb., 1815), by Mathew Carey, 23. 

2 National Intelligencer, Feb. 7, 14, 1811; Judge Cushing had died; Chase had 
been ill throughout the 1810 Term; Judges Todd and Johnson were unable to 
attend. See letters of C. A. Rodney to Nicholson, Feb. 9, 1811, Philip "B. Key 
to Nicholson, Feb. 11, 1811. Joseph II. Nicholson Papers MSS. 

3 11th Cong., 3d Sess., Feb. 11, 12, 1811. 



STORY, WAR AND FEDERAL SUPREMACY 423 

caused by the death of Judge Chase, on June 17, 1811, 
at the age of seventy and after sixteen years' service. 
From the possible candidates to fill his place, Caesar A. 
Rodney of Delaware and John Thompson Mason, 
Robert Smith (Madison's Secretary of State) * and 
Gabriel Duval, all of Maryland, President Madison 
finally chose the latter, Duval, who had been Comp- 
troller of the Currency since 1802, and was then a man 
of fifty-one years of age. The Senate confirmed this 
appointment, as well as that of Joseph Story, on 
November 1§, 1811; and the two new Judges took 
their seats at the 1812 Term. 2 

Of his initiation into his judicial duties, Story wrote : 
" I find myself considerably more at ease than I expected. 
My brethren are very interesting men, with whom I 
live in the most frank and unaffected intimacy. Indeed 
we are all united as one, with a mutual esteem which 
makes even the labors of jurisprudence light. The 
mode of arguing causes in the Supreme Court is exces- 
sively prolix and tedious ; but generally the subject 

1 Smith had been an aspirant for the place before Chase's death ; but President 
Madison had observed to Smith that "it might be most proper to seek a successor 
(to Chase) elsewhere, intimating also that he (Smith) had been so long out of the 
practice and study of the law, and that the Senate would be hard to please in such 
a case. He (Smith) made light of that consideration, with an expression of confi- 
dence in his standing there, which led me to remark that he was not aware how 
much room there was for a different estimate." Madison, III, memorandum of 
April 11, 1811. See also Hartford Courant, Oct. 24, 1810. 

2 The 1812 Term opened on Feb. 3, with Judges Washington, Livingston and 
Todd and the two new Judges, Duval and Story, present. Chief Justice Marshall 
was delayed by a fractured collar-bone, caused by the overturning of the stage 
coach on the way from Richmond, and did not appear until Feb. 14 ; Judge 
Johnson was also ten days late in reaching Washington. Accidents in coach 
travel were frequent in those days. The Washington Federalist, Feb. 9, 1809, 
describing the opening of the Term said : " Judge Paterson is not yet sufficiently 
recovered, from the great injury he sustained from being upset on his way home 
from Albany last fall, to be able to travel." At another Term, Judge Livingston 
was detained from the same cause. In the debates on the removal of the seat of 
Government from Washington to some other city, in 1808, one of the arguments 
advanced was "the wretched state of the roads over which you must pass to the 
Seat of Government from any quarter." 10th Cong., 1st Sess., 159, Feb. 8, 1808. 
See also Diary and Letters of Gouverneur Morris (1888), II, 393. 



424 THE SUPREME COURT 

is exhausted, and it is not very difficult to perceive 
at the close of the cause, in many cases, where the press 
of the argument and of the law lies. We moot every 
question as we proceed, and my familiar conferences 
at our lodgings often come to a very quick, and I 
trust, a very accurate opinion, in a few hours. On the 
whole, therefore, I begin to feel the weight of depression 
with which I came here insensibly wearing away, and 
a calm but ambitious self-possession gradually suc- 
ceeding in its place. . . . Many of our causes are of 
extreme intricacy. Long chancery bills, with over- 
loaded documents, and long common law records, 
with a score of bills of exceptions attached to them, 
crowd our docket. One great cause of the Holland 
Land Company, of which I had a printed brief of two 
hundred and thirty pages, lasted five days in argu- 
ment, and has now been happily decided. It was my 
first cause, and though excessively complex, I had 
the pleasure to find that my own views were those 
which ultimately obtained the sanction of the whole 
Court." x 

The chief case of importance decided at this 1812 
Term was The Schooner Exchange v. McFaddon, 7 
Cranch, 116, involving a libel against an American 
ship captured by the French and converted into a 
public ship of France, the exemption of which from 
suit in our Courts was asserted by the Emperor Napo- 
leon. "At the instance of the executive departments 
of the United States", Alexander J. Dallas, the United 
States Attorney for Pennsylvania, appeared in support 
of the sovereign rights so claimed. On March 3, 
1812, only seven days after the argument, the Chief 

1 Fitzimmons v. Ogden, 7 Cranch, 2, involving the bankrupt affairs of Robert 
Morris, the financier of the Revolution, who had overspeculated in lands, and 
the actions of Gouverneur Morris, relative to great tracts of land in Western New 
York purchased by Robert Morris. Story, I. 215, letter of Feb. 24, 1812. 



STORY, WAR AND FEDERAL SUPREMACY 425 

Justice delivered the opinion of the Court, sustaining 
the exemption of all public ships of friendly nations 
from the jurisdiction of our Courts, an opinion which 
has ever since constituted one of the great fundamental 
decisions in international law. To the argument of 
Robert G. Harper, the Federalist counsel for the 
defendants, who had urged that the Court consider 
the Emperor's infractions of our neutral rights, Mar- 
shall replied that wrongs arising from such conditions 
were "rather questions of policy than law" and "are 
for diplomatic rather than legal discussion." That 
the decision, thus upholding the action of the Madison 
Administration and favoring the French cause, was an 
unpopular one with the Chief Justice's party may be 
seen from an editorial headed "Our Degraded Coun- 
try", in a violent Federalist paper of the day and refer- 
ring to another case where similar action had been 
taken: "What is the melancholy fact — as if thank- 
ful under all our sufferings inflicted by France, we 
are heaping favours upon them in proportion to the 
wrongs we suffer. Look at the following fact; a 
French vessel, La Franchise, was seized by an officer 
of our Government for violating our laws at New 
Orleans. The action which was brought for condem- 
nation, and a judgment upon which would certainly 
have condemned her, was dismissed by direction of 
the President and the vessel ordered to be restored. 
And why? She was a national vessel under the com- 
mand of Capt. de Vaisseau. They take our national 
vessel in Holland and condemn her without violating 
any law ; we take their national ship which by ex- 
press law was liable to confiscation and then restore 
her. ... If the vengeance of this people is not 
raised against such a nation as France, and such rulers 
as our own, then we are fit only to live and die 



426 THE SUPREME COURT 

slaves." 1 In another case, Williams v. Armroyd, 7 
C ranch, 423, in which an American ship had been seized 
by the French under Napoleon's Milan Decree, Marshall, 
while stating that "the edict under which this sentence 
was pronounced is a direct and flagrant violation of 
(international) law", decided, nevertheless, that the 
seizure must be upheld, as title had been adjudicated 
in the French Prize Court. And since Congress had 
not chosen to declare the sentences of condemnation 
pronounced under this unjustifiable decree to be ab- 
solutely void, he stated that "they retain, therefore, 
the obligation common to all sentences whether erro- 
neous or otherwise, and bind the property which is 
their object; whatever opinion other co-ordinate tri- 
bunals may entertain of their own propriety, or of the 
laws under which they were rendered." With like 
impartiality in enforcing international law, even against 
American interests, the Court held American traders 
to the strictest performance of their duties as neutrals, 
in a long series of cases, chiefly involving marine 
insurance companies. 2 

While the 1813 Term, held in the midst of the War 
of 1812, was not of particular significance, that of 1814 
was full of interest. " Owing to the variety of questions 
arising out of the novelty of a state of war in our coun- 
try, it has been the most important Term that has 
been held for many years," stated a contemporary 
newspaper, and Judge Story wrote: "We had a most 
laborious session. We were stuffed with all sorts of 
complicated questions, particularly of Prize Law, in 
respect to which I was obliged to take a decided 

1 Connecticut Courant, July 18, 1810 ; see opinion of Attorney-General Rodney, 
April 3, 1810, 26th Cong., 2d Sess., House Doc., 123, not published in the official 
Ops. Attys.-Gen., I. 

2 For an interesting survey of the laws of war and prize at this time, see 
Charles J. Ingersoll's Historic Sketch (1852), I, ch. 2. 



STORY, WAR AND FEDERAL SUPREMACY 427 

part. As usual, the old maxim was verified — Juniores 
ad labor es. I worked very hard, and my brethren were 
so kind as to place confidence in my researches." 1 
The first war case was decided on March 2, 1814, 
Brown v. United States, 8 Cranch, 110. It involved 
the right of the United States to confiscate enemy 
property within its borders ; and Marshall laid down 
the broad doctrine that the power of the Government 
over enemy persons and property was plenary ; but 
that, in view of the modern and Christian practices 
in time of war, and the duty of the United States 
"to receive the law of nations in its modern state 
of purity and refinement", the intention to exercise 
such an extreme power as that of confiscation must 
be evidenced by Congressional action, the President 
not having the power without sanction by Congress. 
It is interesting to note that the Attorney-General of 
the United States submitted the case without argument 
(relying on Judge Story's opinion in the Circuit Court) 
and lost the case. 

A series of upwards of twenty cases, in which the 
Court rigidly enforced the non-intercourse statutes 
and established the rules of law governing the subject 
of trading with the enemy, revealed the extent to which 
American citizens in the Eastern States were out of 
sympathy with the War of 1812, and the multifold 
and variegated illegal devices by which they attempted 
to carry on commercial transactions with the enemy, 
and even for the enemy's direct benefit, "voyages 
loaded with infamy" as the Court remarked in one case. 2 

1 National Intelligencer, March 19, 1814. Story, 1,261, letter of April 24,1814. 

2 In The Amiable Isabella, 6 Wheat. 86, Judge Johnson referred to "the sad 
depravity of morals exhibited by witnesses in Prize Courts." For examples of 
fraudulent devices, see The George, The Bothnea and The Jahnstoff, 1 Wheat. 408, 
2 Wheat. 169, 278. Very interesting letters from Harrison Gray Otis, a leading 
Federalist lawyer of Boston, to Robert G. Harper of Baltimore, Dec. 2, 1815, May 
26, 1817, about these cases are to be found in the Harper Papers MSS. Otis was 



428 THE SUPREME COURT 

In The Rapid, 8 Cranch, 155, the question arose whether 
bringing into this country goods purchased in Eng- 
land before the war and stored in Nova Scotia was 
illegal, as constituting trading with the enemy. It was 
claimed that this was not a "trading" within the 
meaning of the term ; but the Court refused to confine 
the term to the narrow limits of mere negotiation or 
contract, and stated that "the object, policy and 
spirit of the rule is to cut off all communication or 
actual locomotive intercourse between individuals of 
the belligerent States." To the plea of hardship to 
American citizens, Judge Johnson replied: "It is the 
unenvied province of this Court to be directed by the 
head, and not the heart. In deciding upon principles 
that must define the rights and duties of the citizen 
and direct the future decisions of justice, no latitude 
is left for the exercise of feeling. . . . On the subject 
which particularly affects this case, there has been no 
general relaxation. The universal sense of nations has 
acknowledged the demoralizing effects that would 
result from the admission of individual intercourse. 
The whole nation are embarked in one common bottom 
and must be reconciled to submit to one common fate. 
Every individual of the one nation must acknowledge 
every individual of the other nation as his own enemy 
— because the enemy of his country." The case of 
The Julia, 8 Cranch, 181, 1 presented for decision the 

counsel for the alleged fraudulent captors, and in his letters inveighed against Judge 
Story who decided against him in the lower Court. He wrote to Harper to engage 
him to argue the cases in the Supreme Court, and after stating that $100,000 was 
involved, said : "If you think fit to enlist Pinkney or any other person in whom 
you have more confidence and who will engage upon the understanding of being 
paid $1000 or even $1500, in the event of success only, you are at liberty to do it." 
Pinkney evidently did not accept this contingent fee, as he appeared in the cases on 
the opposite side with Samuel Dexter. Otis, after the cases were won, sent a fee of 
$3000 to Harper and $1500 to his associate, W. II. Winder. See also The St. Nich- 
olas, 1 Wheat. 417; and as to non-interveniion laws, see United States v. 1960 Bags 
of Coffee, 8 Cranch, 398: Brig Strugr/Jr, 9 Cranch, 71. 
1 See also The Venus, 8 Cranch, c 253. 



STORY, WAR AND FEDERAL SUPREMACY 429 

legality of an extraordinary practice, indulged in by 
New England merchants, with whom the war was 
highly unpopular, of accepting British licenses pro- 
tecting them under certain conditions from capture 
by British warships. In this case, the British Vice- 
admiral at Halifax had issued a license to an American 
vessel to carry provisions to Spain and Portugal for 
the use there of the allied armies, Spanish and British, 
such trade consequently affording direct aid by Amer- 
icans to the army of an enemy. Judge Story, in giving 
the opinion of a majority of the Court holding it to be 
illegal, stated that he was not "insensible that it has 
entered somewhat into political discussions, and awak- 
ened the applause and zeal of some, and the denunciations 
of others" ; but he said that a part of the people may 
not "claim to be at peace, while the residue are involved 
in the desolations of war"; and he caustically stated 
that the license presented facts "which it is no harsh- 
ness to declare are not very honorable to the princi- 
ples or the character of the parties. . . . The public 
dangers to which it must unavoidably lead, by foster- 
ing interests within the bosom of the country, against 
the measures of the government . . . can never be 
lost sight of in a tribunal of justice." 1 The decisions 
in these cases were favorably commented on by a 
leading newspaper of the day, as having "put the axe 
to the root of a very extensive fraudulent traffic with 
the enemy, and cannot fail to be acceptable as well 
to the fair and honest merchant as to all the friends 
of the war, throughout the United States"; and it 

1 Story wrote, Aug. 3, 1813, after his decision in this case in the Circuit Court ; 
"I have understood that soon after the war Mr. Pinkney was inclined to the opin- 
ion that licenses were not illegal. . . . The cause has now gone to the Supreme 
Court, and he will of course be engaged in behalf of the captors. I expect a dif- 
ference of opinion among the Court; the great questions of national law have 
not been familiarized among us." It is to be noted that at this time, the term 
"national law" was commonly used for "international law." Story, I, 246. 



430 THE SUPREME COURT 

described the Court as "a branch of the Government 
which it is important to hold in due veneration, and 
whose decisions are entitled to the highest respect." 
The paper also rejoiced that " a greater interest than 
usual waits on its present session. So great is the 
attraction that, notwithstanding the importance and 
interest of the debates in the two Legislative bodies 
holding their sessions in the same pile of buildings, 
it is frequently difficult to keep a quorum in either 
House of Congress owing to the number of members 
who crowd to hear the pleadings in the Court. Yester- 
day, particularly, the Court was more crowded than 
we have ever seen it. The pleaders whom we heard 
were William Pinkney of Maryland, the late Attorney- 
General, and better known as a diplomatist whose 
preeminent talents are universally acknowledged, and 
Samuel Dexter, a great law-character and distinguished 
citizen of Massachusetts." * "The arguments of this 
Term have been conducted with unusual ability," 
wrote Judge Story. "Mr. Dexter and Mr. Pinkney 
have sometimes been opposed to each other, and in the 
conflicts have roused themselves to most strenuous 
exertions. Every time I hear the latter, he rises 
higher and higher in my estimation. His clear and 
forcible manner of putting his case before the Court, 
his powerful and commanding eloquence, occasionally 
illuminated with sparkling lights, but always logical 
and appropriate, and above all, his accurate and dis- 
criminating law knowledge . . . give him in my opin- 
ion a great superiority over every other man whom I 
have known." Of Dexter, Story wrote that "he and 
Mr. Pinkney have called crowded houses; all the 
belles of the city have attended and have been en- 

1 National Intelligencer, Feb. 24, 1814. The case referred to was The Aurora, 
8 Cranch, 203, argued by Samuel Dexter of Massachusetts and David Hunter of 
Rhode Island against William Pinkney. 



STORY, WAR AND FEDERAL SUPREMACY 431 

tranced for hours", and that Dexter's oratory was "calm, 
collected and forcible, appealing to the judgment. 
Mr. Pinkney is vehement, rapid, and alternately 
delights the fancy and seizes on the understanding. 
He can be as close in his logic as Mr. Dexter when 
he chooses, but he can also step aside at will from the 
path, and strew flowers of rhetoric around him." * 

Owing to the burning of the Capitol by the British 
in August, 1814, the Court held its 1815 Term in 
temporary quarters. 2 Of this session, Judge Story 
wrote: "We are deeply engaged in business; very 
important cases have already been decided, and many 
are yet in advance. We have very able counsel : 
Messrs. Emmett, Hoffman and Ogden of New York, 
Dexter of Massachusetts, Stockton of New Jersey 
and Pinkney of Baltimore. Mr. Pinkney and Mr. 
Emmett have measured swords in a late cause. Mr. 
Emmett is the favorite counsellor of New York, but 
Pinkney's superiority was, to my mind, unquestion- 
able. I was glad, however, to have his emulation 
excited by a new rival. It invigorated his exertions, 
and he poured upon us a torrent of splendid eloquence." 3 
The reference by Story was to the famous case of 
The Nereide, 9 Cranch, 388, of which a New York 
newspaper remarked that: "Few cases have excited 
more interest . . . not only on account of the value 
of the property in controversy, but the important ques- 
tions of national law which were involved in it. . . . 
It was argued with great ability on both sides. It 
was a contest indeed, in which political pride, inde- 
pendent of every other consideration, would naturally 
strive for victory; for Mr. (J. Ogden) Hoffman, Mr. 

1 Story, I, 251-253, letter of March 6, 10, 1814, regarding the argument of The 
Aurora and The Frances, 8 Cranch, 203, 335. 

2 National Intelligencer, Feb. 8, 18, March 14, 1815 ; see infra. 

3 Story, I, 253, letter of Feb. 22, 1815. 



432 THE SUPREME COURT 

(Thomas Addis) Eminett and Mr. (John) AVells had 
given strong and decided opinions in favor of the claim ; 
whilst Mr. (Alexander J.) Dallas, Mr. (William) 
Pinkney and Mr. (Robert G.) Harper had given equally- 
strong and decided opinions in favor of the captors. 
Mr. Dallas who opened for the captors and Mr. Pinkney 
who followed him on the same side exhibited their 
whole strength ; the latter gentleman in particular, 
distinguished as he always is, surpassed himself. 
Mr. Hoffman's opening argument and Mr. Emmett's 
concluding reply are spoken of as the most splendid 
specimens of forensic learning and eloquence." 1 The 
decision of Marshall in this case, holding illegal the 
seizure by an American privateer of a valuable cargo 
shipped by a Spanish neutral merchant in a British 
armed vessel, again showed the determination of the 
Court to uphold to the utmost the rights of neutrals. 
That a neutral had the right to ship his goods in an 
armed merchantman of one of the belligerents was held 
to be "a part of the original law of nations." To the 
argument that, since the neutral property in this case 
was Spanish and under Spanish law would be con- 
fiscated, an American Court ought in retaliation to 
apply the same rule, Marshall replied "that such mat- 
ters were for consideration of the Government, not 
of the Court. ... It is not for us to depart from the 
beaten track prescribed for us, and to tread the devious 
and intricate path of politics"; and Judge Johnson 
said : "To the Legislative power alone, it must belong to 
determine when the violence of other nations is to be 
met by violence ; to the Judiciary, to administer law 
and justice as it is, not as it is made to be by the folly 
or caprice of other nations." 

1 New York Evening Post, March 15, 1815. For a long and picturesque account of 
the arguments and characteristics of William Pinkney and Thomas A. Emmet in 
The Nereide and in The Frances, 9 Cranch, 183, at this Term, see Ticknor, I, 38, 41. 



STORY, WAR AND FEDERAL SUPREMACY 433 

Though the National Government emerged from 
the war technically victorious over an external enemy, 
it had for three years been considerably weakened 
by serious internal dissensions. Both the National Ex- 
ecutive and the Government itself had been openly 
set at defiance by States in the North whose hostility 
had culminated in the Hartford Convention. Never 
in its history, therefore, had there been greater need 
of steadfast support of the National supremacy by the 
Judiciary. By a singular chance, the occasion was 
presented to the Court, at the first Term after the close 
of the war, to consider and determine the limits of the 
National authority, in two great cases decided in 1816, 
which, though unrelated as a matter of law, must 
historically be considered together. In the first of 
these, United States v. Coolidge, the Court found itself 
obliged to limit the power of the Courts of the United 
States ; but in the second, Martin v. Hunter's Lessee, 
it upheld their power against a most dangerous attack, 
and rendered a decision which vitally affected the 
future history of the country and strengthened the 
bonds of the American Union. 

In the Coolidge Case, there was finally set at rest a 
question which had long been the subject of heated 
differences of opinion, both at the Bar and in the polit- 
ical field — whether the United States Courts had 
jurisdiction to try persons indicted for offenses, crim- 
inal at common law but not made criminal by any 
specific Federal statute. In the early years of the 
Court, Chief Justices Jay and Ellsworth, and Judges 
Cushing, Iredell, Wilson, Paterson and Washington 
had each delivered opinions or charges in support of 
the existence of such jurisdiction. The first Judge 
to express a contrary view had been Judge Chase, who, 
in April, 1798, startled his colleague (District Judge 



434 THE SUPREME COURT 

Peters) and the Bar by announcing, in United States 
v. Worrall, 2 Dallas, 384, that he would entertain no 
indictments at common law. While by statesmen 
much attention was paid to the decision, it was not 
followed by the other Judges, and it was regarded 
by the Federalists as embodying a disastrous doc- 
trine. 1 "I considered Mr. Chase as one of the men 
whose life, conduct and opinion had been of the most 
extensive influence upon the Constitution of this coun- 
try," wrote John Quincy Adams in his diary, several 
years later, "but he decided, as I think, directly in 
the face of an amendatory article of the Constitution 
of the United States (the Seventh) that the Union 
in its federative capacity has no common law — a 
decision which has crippled the powers, not only of the 
Judiciary, but of all the Departments of the National 
Government. The reasons upon which he rested that 
decision are not sound but . . . they flattered the 
popular prejudices." Though in 1804, Judge Johnson, 
a Republican, adopted Judge Chase's view and the tide 
of public opinion ran high against this exercise of com- 

1 Judge Story wrote in 1816: "Excepting Judge Chase, every Judge that ever 
sat on the Supreme Court bench from the adoption of the Constitution until 1804 
(as I have been very authoritatively informed) held a like opinion." Story, I, 
299. See also Criminal Law, by Francis Wharton, I, 1G8. Peter S. Duponceau 
wrote in 1824 that: "This decision of Judge Chase made a great noise at the time 
and left vague but strong impressions, the more so as he was known to be a man of 
deep learning and considerable strength of mind, and more disposed to extend than 
limit power." Dissertation on the Nature and Extent of the Jurisdiction of the Courts 
of the United States (1824) ; see also Review of the same by Charles J. Davies, in 
North Amer. Rev. (1825), XXI, in which he said: "The opinion of Judge Chase 
seems to have been reverenced as a sort of perpetual edict" — a comment, clearly 
erroneous. District Judge Peters, who dissented from Judge Chase's view in the 
Worrall Case, continued to entertain jurisdiction of criminal indictments at common 
law in Pennsylvania; see full account of the arrest and binding over for trial in 
the Federal Circuit Court of B. F. Bache, editor of the Aurora, "on a charge of 
libelling the President in a manner tending to excite sedition and opposition to the 
law", contained in Aurora, June 27, 30, 1798, in which after reciting the argument 
of defendant's counsel, Alexander J. Dallas, it is said: "Judge Peters observed 
that it certainly would be superfluous to discuss the question of jurisdiction before 
him, as his mind was confirmed in the opinion which he delivered in the case of Wor- 
rall, by the maturest reflection." 



STORY, WAR AND FEDERAL SUPREMACY 435 

mon law jurisdiction, nevertheless, other Judges of the 
Supreme Court, sitting in the Circuit Courts, held the 
crime of perjury indictable in such Courts under the 
common law ; x and in 1807, criminal indictments under 
the common law were found in Federal Courts in 
Kentucky and in Connecticut. While the Kentucky 
case was dismissed, 2 the Connecticut case finally came 
before the Court for decision in 1812, under the fol- 
lowing very peculiar circumstances. In 1807, a series 
of eleven indictments based on the common law had 
been found in the United States Circuit Court for the 
District of Connecticut, against various Federalist 
lawyers, preachers and editors for libelous attacks on 
President Jefferson. 3 That such indictments should 

1 District Judge Peters wrote: "The point of not resorting to common law or 
even British statutory interpretation, such as it was before our Revolution, was first 
furiously made (as well as I now recollect) by Judge Johnson in a most atrocious 
case of piracy and robbery, proved beyond a doubt in South Carolina. We had the 
same case involved here, in a case of the criminal's associates in the enormities. It 
was one of the most infamous I ever sat in." Pickering Papers MSS, XXIX, letters 
of March 24, April 14, 1816. See also J. Q. Adams, V, Dec. 18, 1820; argument 
of Alexander J. Dallas in United States v. Passmore, 4 Dallas, 372, April, 1803. 

2 This case has not been hitherto noted by legal historians. Joseph H. Daviess, 
United States Attorney for Kentucky, a Federalist, wrote in his Sketch of the Polit- 
ical Profile of Three Presidents, Quarterly Pub. of the Hist, and Phil. Soc. of Ohio 
(1917), XII, in 1807, referring to an atrocious murder of Indians by white men, 
that when a mob rescued one of the murderers "General Dearborn (Secretary of 
War) enclosed me Mr. Lincoln's (Attorney-General) opinion in writing, with 
orders to prosecute the leader of the riot under the common law. I wrote back to 
the Secretary, reminding him of the public heat his party had raised about the 
common law, and desiring to be instructed whether I should go on ; and I indicted 
the man, but stated to the Court my own opinion of the want of jurisdiction. The 
Court dismissed it. Before the Court was over, the post brought Gen. Dearborn's 
letter forbidding me to proceed." 

3 See as to these cases, New York Evening Post, July 3, 1807 ; Connecticut in 
Transition (1918), by Richard J. Purcell, 277, giving accounts of the indictments 
for libelous attacks on President Jefferson, of Judge Tapping Reeve, Thaddeus 
Osgood, Thomas Collier (a Litchfield printer) in 1805, and Rev. Aseland Backus 
and of Hudson and Goodwin (editors of the Connecticut Courant) and others in 
1807. See also " A Letter to the President touching the Prosecutions under his Pat- 
ronage (1808), by Chatham." The New England Patriot being a Candid Comparison 
of the Principles and Conduct of the Washington and Jefferson Administrations (1810) 
13, charged that the Democratic leaders, under advice of Attorney-General Lin- 
coln, were determined to punish " Oppugnation" to the Government and insti- 
tuted prosecutions at common law against newspapers " for daring to exhibit to 
the people the true state of the publick affairs." 



436 THE SUPREME COURT 

have been instituted during the Administration of a 
statesman, whose hostility to the doctrine of common 
law Federal prosecutions had been bitter and long 
continued, was a singular anomaly in American legal 
history. None of the cases were tried ; for Jeffer- 
son, who had not known of their existence, ordered 
their dismissal as soon as he learned of them ; and 
all but one were nol-prossed in 1808 and 1809. 1 One 
case, however, survived and reached the Supreme 
Court, on certificate from the Judges of the Circuit 
Court who divided in opinion on the point of jurisdic- 
tion. Meanwhile, the institution of these common 
law prosecutions had been the subject of severe attack 
upon Jefferson on the floor of Congress. John Ran- 
dolph said he learned "this awful truth " of their existence 
"with infinite surprise", and he was horror-stricken 
that they "appeared scarcely to excite a sensation 
either in this assembly or the public, in the men who 
were most clamorous against the Sedition Law. . . . 
Such is the difference between men in power and men 
out of power ; such the difference between profession 
and practice." Edward St. L. Livermore, a Federal- 

1 Jefferson, X, XI, letters to Thomas Seymour, Feb. 11, 1807, to Wilson Cary 
Nicholas, June 13, 1809, in which Jefferson said that he understood that " these 
prosecutions had been invited, if not instituted, by Judge (Pierrepont) Edwards, 
and the marshall, being republican, had summoned a jury partly or wholly repub- 
lican ; but that Mr. Huntington (U. S. Attorney) declared from the beginning 
against the jurisdiction of the Court and had determined to enter nolle prosequi, 
before he received my direction." See also letter from Gideon Granger in National 
Intelligencer, July 21, 1808, giving the facts as to Jefferson's attitude. Jefferson, 
writing to Granger, Jan. 26, 1810, said that the Connecticut prosecutions had been 
"false and maliciously" attributed to him (Jefferson) and he thanked Granger 
for his public explanation ; in another letter to Granger, March 9, 1814, he explained 
the reasons for his order for the dismissal of the cases. Gideon Granger Papers 
MSS. 

The Connecticut Courant, whose editors were indicted, was particularly virulent 
over these indictments, and sarcastic over their dismissal, Sept. 28, 1808 ; and on 
May 17, 1809, it said: "Melancholy Obituary, Died at New Haven during the 
session of the Circuit Court in April last Indictment No. 11. . . . This was the 
eleventh death in the same family in the short space of about three years, and 
all victims of one disease, the nolle prosequi or Quash Fever." 



STORY, WAR AND FEDERAL SUPREMACY 437 

ist of New Hampshire, proposed the passage of a law 
to punish such egregious abuses of power. Ezekiel 
Bacon of Massachusetts, a Republican, agreed with 
Randolph. It was under such peculiar circumstances 
that the case involving the existence of the right to 
indict in the Federal Courts for common law crimes 
reached the Supreme Court for argument in 1812, 
United States v. Hudson and Goodwin, 7 Cranch, 32. 
Inasmuch as both political parties now opposed the 
doctrine, and as all the other Connecticut cases had 
been dismissed by Presidential order, both the Attorney- 
General, William Pinkney, and the counsel for the 
defendants, Samuel W. Dana, Congressman from 
Connecticut, declined to argue the case. 1 Conse- 
quently, this far-reaching question as to the juris- 
diction of the Federal Judiciary was decided by the 
Court, in a summary manner without any assistance 
from the Bar; and Judge Johnson stated in a short 
and loosely reasoned opinion that the Court consid- 
ered the question "as having been long since settled 
in public opinion. In no other case for many years 
has this jurisdiction been asserted, and the general 
acquiescence of legal men shows the prevalence of 
opinion in favor of the negative of the proposition" ; 
and he held that exercise of criminal jurisdiction in 
common law cases was not within the implied power of 
the Federal Courts. W 7 hile the principle then estab- 
lished was undoubtedly sound and wise in thus limiting 
indefinite powers of Federal Courts, it left the United 
States Government in a singularly helpless condition ; 

1 Samuel W. Dana first called the attention of Congress to these prosecutions 
Jan. 2, 1807, 9th Cong., 2d Sess. On Feb. 2, 1809, he again adverted to them. 
10th Cong., 2d Sess. And on May 25, 1809, there was a general debate on the 
subject on Randolph's proposed resolution to inquire, "what prosecutions had been 
entertained by the Courts of the United States for libels at common law, and to 
report such provisions as in their opinion may be necessary for securing the free- 
dom of speech and of the press." 11th Cong., 1st and 2d Sess. 



438 THE SUPREME COURT 

for Congress had enacted very few statutes specifically 
defining Federal crimes. And it was peculiarly dis- 
astrous that the decision should have been rendered 
at this particular period ; for during the next four 
years, the excited and refractory citizens of the North- 
ern States, in their violent opposition to the War of 
1812, were not only resisting the enforcement of exist- 
ing laws but also eager to take advantage of any gaps 
in the Federal criminal law. It was, therefore, plainly 
imperative that Congress should do something to 
counteract the effect of the Hudson Case decision. 
No one saw the need of legislation more clearly than 
Judge Story, who, instructed by his experience in the 
Circuit Court in Massachusetts, wrote: 'The Courts 
are crippled ; offenders, conspirators and traitors, 
are enabled to carry on their purposes almost with- 
out check. It is truly melancholy that Congress will 
exhaust themselves so much in mere political dis- 
cussions, and remain so unjustifiably negligent of the 
great concerns of the public." l Again, he wrote : 
"Pray induce Congress to give the Judicial Courts of 
the United States power to punish all crimes and 
offences against the Government as at common law. 
Do not suffer conspiracies to destroy the Union to 
be formed in the bosom of the country, and yet no laws 
exist to punish them"; and again, in 1813: "A dis- 
graceful affair has happened in Boston, of the rescue 
of a prize by the owners. I should not be at all sur- 
prised that the actors should escape without ani- 
madversion, owing to defects in our criminal laws. Nor 
shall I be astonished, that in all cases of American 
vessels seized, trading with the enemy, forcible rescues 
should be attempted hereafter, even against our 

1 Story, I, 243, 247, letters to N. Williams, Oct. 8, 1812, May 27, Aug. 3, 
1813. 



STORY, WAR AND FEDERAL SUPREMACY 439 

national ships. What Congress means by their gross 
and mischievous indifference to the state of the crim- 
inal code, I know not." 

In 1814, when the crime of trading with the enemy 
had become extremely prevalent and there existed 
no adequate Federal statutes relating to this crime, 
it was felt in several localities that indictments ought 
to be sought at common law, in spite of the decision 
of the Court in the Hudson Case. Attorney-General 
Richard Rush, however, wrote to the United States 
Attorney in Massachusetts, discountenancing any such 
prosecutions and saying : l 

I must declare that I do not think the common law appli- 
cable in such a case to the Government of the United States. 
. . . I do not think that a Federal Republic like ours, 
resting upon, as its only pillars, the limited political con- 
cessions of distinct and independent sovereign States, drew 
to itself, by any just implication, at the moment of its cir- 
cumscribed structure, the whole common law of England, 
with all or any portion of its dark catalogue of crimes and 
punishments ; . . . a code which, among the vast variety of 
actions that, in a complicated community, human frailty 
may be betrayed into, denounces, upon scarcely less than 
two hundred, capital infliction, thereby, as the regular and 
melancholy fruits of such a system, and as authentic lights 
assure us, imprinting more of human blood upon the gib- 
bet than is known to the same extent of population in any 
other portion of Europe. Against the incorporation of such 
a code, even with the limitations that might be implied, 
upon the jurisprudence of the Union, I perceive serious 
and insurmountable objections. I believe, also, that this 
opinion has been adopted, partially at least, by the highest 
judicial tribunal known to the Constitution, although I 
observe that you speak doubtfully upon this point, con- 
sidering it not yet ultimately at rest. 

In view of the existing war conditions, it was nat- 
ural that the case which finally settled the question 

1 13th Cong., 3d Sess., 1821 et seq. 9 letter of July 28, 1814. 



440 THE SUPREME COURT 

of the common law jurisdiction of the Federal Courts, 
should arise in connection with illegal trading with the 
British, and should come to the Supreme Court from 
the Circuit Court in Massachusetts. In United States 
v. Coolidge, 1 Wheat. 415, an indictment had been 
found against the defendants for forcibly rescuing a 
prize captured by an American privateer. Though 
no Federal statute made such an act criminal, Judge 
Story, sitting in the Circuit Court, held that as it was 
an offense under admiralty law, it was punishable by 
a Federal Court even without a statute. The Judges 
in the Circuit Court, however, dividing in opinion, the 
case was certified to the Supreme Court. When it 
came up for argument, now in 1816, Attorney-General 
Rush said that "he had given to this case an anxious 
attention", but believing that the Hudson and Goodwin 
decision was controlling, he declined to argue ; and no 
counsel appeared for the defendants. In the absence 
of any argument, the Court, through Judge Johnson, 
said that: "A difference of opinion has existed, and 
still exists, among the members of the Court. We 
should, therefore, have been willing to have heard the 
question discussed upon solemn argument" ; but in 
the absence of any argument, it held that it would 
not review the former decision. Hence, in this unsat- 
isfactory manner and without any argument before 
the Court, this highly important and fundamental 
question in the history of American law was settled. 1 

The extent to which this decision of the Court 
resulted in hampering the administration of justice 
was interestingly commented on by District Judge 
Peters : 2 

1 As late as 1825, William Rawle in his Constitution of the United States strenu- 
ously urged that the United States still possessed a common law criminal jurisdiction. 

2 Pickering Papers MSS, letters of March 20 and April 14, 1816, hitherto unpub- 
lished. 



STORY, WAR AND FEDERAL SUPREMACY 441 

Under a late decision of that Court, to which I am bound 
to submit, I cannot carry on the business of my district. It 
meets me in almost every criminal case. Unless some legis- 
lative authority be given to define crimes or statutory de- 
scriptions be established, the whole (or nearly) of our crimi- 
nal code may be expunged. Treason is defined by the 
Constitution ; but most other crimes are barely named, 
tho' their punishments are, for the most part, prescribed. 
We are forbidden to resort to common law for interpreta- 
tion, and our jurisdiction of crimes punishable at common 
law is excluded. I live in a district of mixed population ; 
as to seamen particularly, I am subject to constant neces- 
sity of taking cognizance of crimes, great and small, with- 
out a guide to direct my course. I had little difficulty 
before the occasion alluded to ; but now my hands are tied, 
and my mind padlocked. . . . Whilst the opinion that we 
had no common law jurisdiction in criminal cases was held 
by some and denied by others, I thought myself justified 
in following my own. But now I am bound by overruling 
decision to avoid acting under my own sentiments. . . . 
Every crime, not defined in our statutes, — murder, rape, all 
the less offences may be committed with impunity in places 
under the exclusive jurisdiction of the United States. If a 
tourist had given this account of us on his return to a foreign 
country, there would have been a general outcry here that 
he was a libeller. Yet such an account would have been 
true ; and an exception to the general habits of travellers 
thro' our country. . . . Our National criminal code is lucus 
a non lucendo. ... If it were not too serious and tragical 
in its consequences ... it would be a perfect mockery 
and ridicule on public criminal law. 

Disappointed at the result of the Coolidge Case, Judge 
Story became even more anxious than before to obtain 
Congressional legislation "to delegate authority in 
general terms over crimes." This was not seeking to 
assume a general common law jurisdiction, he wrote. 
"It is still competent for Congress to adopt as to its own 
powers an exercise of common law principles. ... I 
believe that none of us (Judges) entertain any doubt as 



442 THE SUPREME COURT 

to the authority of Congress to invest us with this juris- 
diction, so far as it applies to the sovereignty of the 
United States." l Accordingly, he drafted in 1816 a bill 
"further to extend the judicial system of the United 
States", which was revised by Marshall and Bushrod 
Washington and approved by the other Judges (except 
Johnson) . It was designed to give to the Circuit Courts 
jurisdiction "in all cases in law and equity arising under 
the Constitution, the laws of the United States, and 
under treaties made or to be made under its authority" 
(a jurisdiction which in fact Congress did not grant 
until sixty years later) and also to grant general juris- 
diction to punish crimes committed against the Federal 
Government, making those common law crimes which 
violated its sovereignty punishable, without attempting 
to enumerate and define specific offenses. Congress, 
however, failed to enact this statute or any legislation 
on the subject ; and the gaps which existed in the 
Federal criminal law continued to be pointed out by the 
Court, as cases arose, 2 until finally in 1825, a more com- 
plete Crimes Act (drafted by Story, and supported by 
Webster) was enacted which more adequately, though 
still far from completely, gave protection to the Federal 
sovereignty. 3 

At this very period when the powers of the Federal 
Government had been thus considerably weakened by 
the Court's decision in the Coolidge Case, by the absence 
of adequate Federal criminal legislation, and by the 
serious and long-continued attacks upon the Federal 
authority in the Northern States, a case now came 
before the Court, in 1816, on writ of error to a State 

1 Story, I, 293, 298-300. 

2 See for instance United States v. Bevens (1818), 3 Wheat. 336; United States v. 
Wiltberger (1820), 5 Wheat. 76. 

3 This Act of March 3, 1825, was originally drafted by Story, in 1818. See 
Story, I, 437. 



STORY, WAR AND FEDERAL SUPREMACY 443 

Court in Virginia, which involved a still more vital 
impairment of Federal supremacy, should the doctrine 
contended for by the State Court prevail. In this case 
of Martin v. Hunter s Lessee, 1 Wheat. 304, a State for 
the first time asserted the unconstitutionality of the 
jurisdiction of the Court on writs of error to the State 
Courts. Such Federal power of revision granted by the 
original Judiciary Act of 1789 had been deemed by the 
statesmen of the First Congress to be necessary in order 
to promote uniformity of law and to insure supremacy 
of the Federal Government in National affairs. 1 It con- 
stituted, nevertheless, undoubtedly a marked impair- 
ment of State sovereignty ; and in view of the extreme 
jealousy shown by the States from the outset towards 
the Federal Government, it is a singular fact in our 
history that this Section was in force twenty -four years 
before any State resented its existence or attempted to 
controvert the right of Congress to enact it. During 
these years from 1789 to 1813, the Court had taken 
jurisdiction of writs of error to State Courts in sixteen 
cases, without serious opposition of counsel or of such 
Courts. As late as 1809, so ardent an upholder of 
State-Rights as the Virginia Legislature deliberately 
resolved, in answer to Pennsylvania's assertion of State 
sovereignty in its conflict with United States District 
Judge Peters, that for the determination of disputes 
between the General and State Governments, "a tri- 
bunal is already provided by the Constitution of the 
United States (to wit, the Supreme Court) more emi- 
nently qualified to decide the disputes aforesaid in an 
enlightened and impartial manner than any other tri- 
bunal which could be created." In 1812, New Jersey 
had accepted without a murmur a decision of the Court 
invalidating a State statute on writ of error to the State 

1 See Introductory Chapter, supra, 10-20. 



444 THE SUPREME COURT 

Court. 1 It remained for the State of Virginia in 1814 to 
be the first to question the validity of this statute, and 
by decision of its highest State Court to decline to com- 
ply with a mandate of the Supreme Court of the United 
States in a case coming before it on writ of error under 
the law. Such action and such a reversal of policy in a 
State which had contributed three Judges to the Court, 
and which contained a larger proportion of eminent 
lawyers than any other State (except Pennsylvania) in 
the Union, can only be understood by a consideration of 
the particular matters which were at stake in the case — 
immense and valuable landed properties, the State con- 
fiscation acts and the unpopular treaties with Great 
Britain protecting British creditors — matters which 
were of vital interest to large numbers of Virginians, 
and which had long been the subject of heated political 
contest. The direct issue was the title to certain rich 
timber and tobacco lands on the Potomac River in 
Shenandoah County and the Northern Neck of Vir- 
ginia, formerly belonging to Lord Fairfax, who had 
died in England in 1781, devising his Virginia estates 
to his nephew, Denny Martin. The State of Virginia, 
denying the right of an alien to inherit, and also claim- 
ing to have confiscated the estate in 1777, granted 
a part of the land in 1789 to one David Hunter; and 
from this grant, there arose the long series of cases 
which culminated in the final decision by the Supreme 
Court of the United States in 1816, upholding the 
supreme rights of the National Judiciary to adjudicate 
questions involving a Federal law or treaty, even when 
arising in State Court. The controversy had originated 

1 New Jersey v. Wilson, 7 Cranch, 164. The first case on writ of error to a State 
Court was Olneyv. Arnold, 3 Dallas, 308, at the August, 1797, Term, involving the 
construction of the Federal Statute by a Rhode Island Court : the first ease on writ 
of error to a State Court in which a State law was held invalid was Ckrke v. 
HaTWOod, :$ Dallas, 342, in 1797, a Maryland law as to British debts being held to 
conflict with a treaty. 



STORY, WAR AND FEDERAL SUPREMACY 445 

as early as the year 1791, when Hunter brought a suit in 
ejectment against Martin in the Superior Court for 
Shenandoah County in Virginia, John Marshall rep- 
resenting Martin. 1 Decisions adverse to the claimant 
were given in the lower Court in 1794, and in the Vir- 
ginia Court of Appeals in May, 1796, and the case came 
before the United States Supreme Court at the August 
Term, in 1796, on writ of error to the State Court, but 
was never argued. 2 Thirteen years later, the case came 
again before the Virginia Court of Appeals, in October, 
1809, and on April 23, 1810, that Court demolished the 
Fairfax title, opinions sustaining the Hunter claim being 
rendered by Judge Fleming, and by Judge Spencer 
Roane — the latter a bitter opponent of Marshall's, a 
passionate Republican, and a son-in-law of Patrick 
Henry. 3 A writ of error was at once sued out in the 
United States Supreme Court and the record of the 
case was certified by the Virginia Court of Appeals in 
response to the Federal writ, without the slightest 
demur to the power or jurisdiction of the Federal Court 
to issue such a writ. This case, Fairfax's Devisee v. 
Hunter's Lessee, 7 Cranch, 602, was argued by Charles 

1 See Hunter v. Fairfax's Devisee, 1 Munford, 218. The claim was based, first, 
on the original invalid title of Lord Fairfax, second, on the confiscation by Virginia, 
third, on the inability of an alien to devise land in Virginia to an alien. Marshall 
had previously represented certain Virginia citizens who claimed as purchasers 
under Lord Fairfax. See llite v. Fairfax, 4 Call. 42, in 1786. 

2 Hunter v. Fairfax's Devisee, 3 Dallas, 305. Charles Lee of Virginia and Jared 
Ingersoll of Pennsylvania appeared and argued against a continuance which was 
sought because of the death of Hunter's distinguished counsel Alexander Campbell 
of Virginia. The Court, remarking that the cause was one of magnitude, granted 
the continuance. Supra, 151-153. 

3 For detailed accounts of the relations of John Marshall to this case, see Marshall, 
IV, Chap. 3; History of the Supreme Court (1912), by Gustavus Myers. Myers 
alleges that John Marshall was a part owner of the lands claimed by Hunter ; and 
Judge Roane apparently took this view of the case. On the other hand, Beveridge 
asserts that Marshall's brother, James M. Marshall, was alone interested in the 
land in question, although John Marshall was owner of other land purchased 
from Lord Fairfax. It is difficult on the evidence to determine the real fact. 
But John Marshall, at all events, declined to sit at the argument or to take part in 
the decision in the Supreme Court. 



446 THE SUPREME COURT 

Lee and Walter Jones against Robert G. Harper. The 
Court took a year to consider, and on March 15, 1813, 
rendered its opinion through Judge Story, reversing the 
judgment of the Virginia Court of Appeals. Even if 
the decision had not dealt with a topic containing ele- 
ments socially and politically explosive, the manner 
in which it was rendered would undoubtedly have 
caused considerable dissatisfaction ; for Chief Justice 
Marshall and Judge Washington absented themselves 
from the argument; Judge Todd was absent at the 
decision ; and Judge Johnson dissented. It would 
appear, therefore, that the judgment, concurred in by 
Story, Livingston and Duval only, was that of less 
than a majority of the full Court. In the second place, 
the decision that an alien could take land in Virginia by 
devise was contrary to both the sentiment of the people 
and the law as laid down by the State Courts ; and it is 
doubtful whether, in later years, the Court would not 
have felt bound to accept the State law on this point. 
In the third place, Judge Story gave a construction 
to the State confiscation statutes which practically 
emasculated them and again ran counter to State Court 
decisions. There was, therefore, every element present 
in the case to weaken the confidence and wound the pride 
of the State. When the mandate of the Federal Court 
issued, the question was then for the first time raised in 
the State Court whether the former Court had the power 
to exercise jurisdiction over the latter's judgment, and 
whether obedience should be given to the mandate. 
In other words, was the Judiciary Act constitutional ? 
These points were argued at length before the Court of 
Appeals of Virginia in April, 1814 ; and the Reporter 
in reporting this argument said : "The question whether 
this mandate should be obeyed excited all that attention 
from the Bench and Bar which its great importance 



STORY, WAR AND FEDERAL SUPREMACY 447 

truly merited." ! It was indeed of momentous conse- 
quence, as the right of a State Court to disobey the man- 
date of the Federal Supreme tribunal and the right of 
that State Court to decide for itself the constitutionality 
of the Federal Judiciary Act were directly contended for. 
It was not until December, 1815, a year and a half after 
the argument, that the decision was finally rendered. 2 
The Judges were unanimous in holding that: "The 
appellate power of the Supreme Court of the United 
States does not extend to this Court under a sound 
construction of the Constitution of the United States ; 
that so much of the Twenty -fifth Section of the Act . . . 
to establish the Judicial Courts of the United States as 
extends the appellate jurisdiction of the Supreme Court 
to this Court, is not in pursuance of the Constitution 
of the United States ; that the writ of error in this case 
was improvidently allowed under the authority of that 
Act ; that the proceedings thereon in the Supreme Court 
were coram non judice in relation to this Court ; and 
that obedience to its mandate be declined by this 
Court." Judge Cabell said the Court "should decline 
obedience to the mandate"; Judge Brooke, that 
"obedience to the mandate ought to be refused"; 
Judge Fleming, that "it is inexpedient for this Court 
to obey the mandate"; Judge Roane said that "this 
Court is both at liberty and is bound to follow its own 
convictions on the subject," and he continued with 
strong expression of the radical State-Rights view of the 
situation. After stating that the Court had called in 
members of the Bar to investigate the question for its 
information and had given it "long and deliberate con- 
sideration", he said : 

1 See 4 Munford, 3. 

2 The Reporter stated: "This opinion was prepared and ready to be delivered 
shortly after the argument. The crisis referred to has now happily passed 
away." 



448 THE SUPREME COURT 

This course of the Court, to say nothing of its general 
character, should have spared the appellee's counsel the 
trouble of exhorting this High Tribunal to divest itself of 
all improper prejudices, in deciding on this important ques- 
tion. Those counsel were also pleased to warn us of the 
consequences of a decision, one way, in reference princi- 
pally to the anarchical principles prevalent at the time of 
the argument in a particular section of the Union. They 
ought to have remembered that this Court did not select 
the time for bringing this case to a decision, and that it is 
not for it to regard political consequences, in rendering its 
judgment. They should also have recollected that there 
is a Charybdis to be avoided, as well as a Scylla ; that a 
centripetal, as well as a centrifugal principle, exists in the 
Government ; and that no calamity would be more to be 
deplored by the American people, than a vortex in the Gen- 
eral Government, which should ingulph and sweep away 
every vestige of the State Constitutions. 

The refusal of the Virginia Court to comply with the 
mandate was brought, on another writ of error, to the 
Supreme Court in 1816, Martin v. Hunter s Lessee, 
1 Wheat. 304, and was argued by Walter Jones against 
St. George Tucker of Virginia and Samuel Dexter of 
Massachusetts. Both the latter counsel, upholding the 
State Court, took the position that although the Con- 
stitution provided that the judicial power " shall extend 
to all cases in law or equity" arising under the Constitu- 
tion, laws and treaties of the United States, nevertheless, 
Congress had no power to give to the Court appellate 
jurisdiction from the State Courts ; Tucker claiming 
that Congress could only enable parties claiming under 
the Constitution, laws, or treaties to sue in Federal 
Courts ; and Dexter taking the ground that Congress 
could provide, but had not done so, for removal from a 
State Court into a Federal Court of all suits involving 
the laws, treaties, and Constitution. Dexter, however, 
was insistent that the Judiciary Act (a law which, he 



STORY, WAR AND FEDERAL SUPREMACY 449 

claimed, had been " improvidently assented to" by 
President Washington and those who advised him) was 
"neither constitutionally nor politically adapted to en- 
force the powers of the National Courts in an amicable 
and pacific manner" ; and he pointed out the dangers of 
friction between the States and the Federal Government 
which might arise from the exercise of appellate jurisdic- 
tion. "The taper of judicial discord," he said, "may be- 
come the torch of civil war, and though the breath of a 
Judge can extinguish the first, the wisdom of the states- 
man may not quench the latter. ' ' He expressed his regret, 
however, that "the Courts of so patriotic a State as 
Virginia have denied the complete and exclusive domin- 
ion of the National Government over the whole surface 
of the judicial power granted by the people to that 
government." He had never feared that the Govern- 
ment was too strong, but rather that it was not strong 
enough ; but he said : " Though I will struggle to pre- 
serve all the constitutional powers of the National 
Government, I will not strain and break the Constitu- 
tion itself in order to assert them." 

On March 20, 18 1G, Judge Story rendered the opinion 
of the Court, an opinion which has ever since been the 
keystone of the whole arch of Federal judicial power. 
"The questions involved in this judgment," he said 
at the outset, "are of great importance and delicacy. 
Perhaps, it is not too much to affirm that upon their 
right decision, rest some of the most solid principles 
which have hitherto been supposed to sustain and pro- 
tect the Constitution itself," and he added that the 
deference felt by the Court towards the Virginia Court 
increased the difficulty of the task "which has so un- 
welcomely fallen upon us." After an exhaustive con- 
sideration of the wording of the Constitution, and of 
the intent of its framers, the Court reached the con- 
vol. i — 15 



450 THE SUPREME COURT 

elusion that that instrument gave to Congress the right 
to confer appellate jurisdiction upon the Supreme Court 
in all cases involving the laws, treaties and Constitution 
of the United States, and that such jurisdiction was 
dependent on the nature of the case rather than on the 
particular Court in which the case was pending. It 
further held that the existence of such power, if it did 
in fact impair the sovereignty of the States or the inde- 
pendence of their Courts, was only one instance, of many, 
in which the People of the United States, by adopting 
the Constitution, intentionally deprived the States of a 
portion of their sovereignty, in order to erect and pre- 
serve an effective National Government. Judge John- 
son, in an eloquent concurring opinion, termed the 
question "one of the most momentous importance, as 
one which may affect, in its consequences, the perma- 
nence of the American Union. It presents an instance 
of collision between the judicial powers of the Union 
and one of the greatest States in the Union," but, he 
said, "the General Government must cease to exist, 
whenever it loses the power of protecting itself in the 
exercise of its constitutional powers." Finally, hold- 
ing the Judiciary Act to be constitutional, and reversing 
the judgment of the Virginia Court of Appeals, the 
Court decided to avoid the chance of further friction 
with that Court, and accordingly, instead of issuing a 
second mandate to that Court, it issued its process 
directly to the District Court of Shenandoah County, in 
which the suit had been originally instituted. 1 

The vital effect upon the history of the United States 
of this courageous maintenance of Federal supremacy 
and of the constitutional powers of the Federal Judiciary 

1 In two other cases the Court has felt obliged to issue its mandate directly 
to the Court where the suit originated, owing to a failure of the highest tribunal 
of the State to comply with a mandate. See Tyler v. Magwire (1873), 17 Wall. 
253 ; and Williams v. Bruffy (1880), 102 U. S. 248. 



STORY, WAR AND FEDERAL SUPREMACY 451 

can hardly be over-emphasized, and it should be noted 
that this decision was rendered by a Republican Judge 
and a Court consisting of five Republicans and one 
Federalist (Chief Justice Marshall not sitting). It has 
sometimes been charged that Story, in rendering this 
strongly Federal opinion, was controlled by the over- 
mastering mind and influence of Marshall. The ab- 
surdity of this charge, however, is made clear when 
Judge Story's personal views, previously expressed by 
him, are studied. And it is unquestionably a fact that 
it was Story's personal experiences with the repeated 
attacks upon and violations of the Federal law in New 
England, which had revealed to him the weakness of the 
Federal Government and impressed upon his mind the 
need of an assertion to the utmost of every power which 
the Constitution lawfully conferred upon the various 
branches of that Government. Of his insistence that 
Congress should provide adequate criminal statutes to 
punish those who resisted the Federal authority in 1812 
and 1813, mention has already been made. "Do not 
surfer conspiracies to destroy the Union to be formed in 
the bosom of the country and no laws exist to punish 
them," he had written. "I love the Constitution; it 
is the bulwark of our liberties, and it would grieve my 
soul most deeply and bitterly to have it crushed by 
factions ; the laws ought to be made to reach all public 
crimes." "The Government will be completely pros- 
trated unless they give jurisdiction to their Courts and a 
common law authority to punish crimes." * Story had 
also witnessed personally the attacks upon the Courts 
in Massachusetts, and he had written in 1813 of "the at- 
tempts to break down the Judiciary of the United States 
through the newspapers, and mean and miserable insin- 
uations are made to weaken the authority of its judg- 

1 Story, I, 247, letter of Aug. 13, 1813. 



452 THE SUPREME COURT 

ments. ... I can perceive a path which, without a 
great sacrifice of what the world would deem equity, 
might make me a very popular Judge of the Court at 
this moment ; but I have great fears as to the character 
of a popular Judge in these times. I prefer to meet the 
present prejudices, rather than hereafter to suffer the 
deepest regrets for judgments which I could not sustain 
upon principles of law or upon conscientious errors of 
reasoning." Before he had been on the Bench four 
years, he had become convinced of the necessity of a 
strong central Government, and he had written to a 
friend in that year : " Let us extend the National author- 
ity over the whole extent of power given by the Consti- 
tution. Let us have great military and naval schools ; 
an adequate regular army ; the broad foundations laid 
of a navy ; a National bank ; a National system of bank- 
ruptcy ; a great navigation act ; a general survey of 
our ports, and appointments of port wardens and 
pilots ; Judicial Courts which shall embrace the whole 
constitutional powers. . . . By such enlarged and 
liberal institutions, this Government of the United 
States will be endeared to the people, and the faction 
of the great States will be rendered harmless. Let us 
prevent the possibility of a division, by creating great 
National interests which shall bind us in an indissoluble 
chain." Morever, in the very year in which he ren- 
dered his opinion in the Virginia case, Story had shown 
how firmly rooted were his views as to the need of 
Federal supremacy, in a memorandum for a proposed 
Federal statute : l "Nothing can better tend to promote 
the harmony of the States, and cement the Union (al- 
ready too feebly supported) than an exercise of all the 
powers legitimately confided to the General Govern- 

1 Story, I, 253, letter of Feb. 22, 1815, id., 295, memorandum in favor of a bill 
to extend the judicial system of the United States. 



STORY, WAR AND FEDERAL SUPREMACY 453 

ment, and the judicial power is that which must always 
form a strong and stringent link. . . . Let not the 
dignity of the Government or of its officers be sunk so 
low that its authority may be scoffed at and denied 
with impunity ... I hold it to be a maxim . . . 
that the Government of the United States is intrinsi- 
cally too weak, and the powers of the State Govern- 
ments too strong; that the danger always is much 
greater of anarchy in the parts, than of tyranny in the 
head." Thus, not a single view was expressed by 
Judge Story in his opinion in the Virginia case which he 
had not already entertained and expressed for several 
years previous. It was the Federalist lawbreakers and 
traitors of New England who produced the decision in 
Martin v. Hunter s Lessee, and not the pressure of 
Marshall's influence. It was the " crisis " and "anarchi- 
cal principles", prevailing in Massachusetts and referred 
to by Judge Roane in the Virginia Court, which made 
Story's decision peculiarly opportune. And that its 
affirmance of the constitutional jurisdiction of the Court 
was not directed against Virginia alone may be seen 
from the fact that the Supreme Court of Massachusetts, 
in a decision rendered shortly after that decision of the 
Virginia Court of Appeals, had intimated that it also 
considered the appellate jurisdiction under the Judiciary 
Act to be "a question of much doubt and argument." l 
Story's decision, thus, disposed of attacks upon the 
authority of the Court from both North and South. 

1 Weatherbee v. Johnson (1817), 14 Mass. 417, saying: "The power claimed by 
the Supreme Court of the United States, has been denied by the highest Court of 
law in Virginia. The Justices of that Court think it never was the intention of the 
Constitution of the United States to consider the Supreme Court of the several 
States as tribunals inferior to the Courts of the United States ; or that a privilege 
was given to a defendant who had submitted to the jurisdiction of a State Court, 
taken his trial there, and finally failed in his defense, to harass his adversary by 
intercepting the remedy, which he may have obtained at great expense, and carry- 
ing his case to a tribunal whose sessions would be at the seat of the National Govern- 
ment, perhaps a thousand miles distant from the place of his residence." 



CHAPTER TEN 
THE JUDGES AND THE COURT-ROOMS 

1800-1816 

The close of the 1816 Term marked a very distinct 
period in the history of the Court and of American 
law. For with the end of the war came the turning 
of the attention of the American people from agri- 
culture and shipping to manufactures ; manufac- 
turing corporations came into being ; inventions in- 
creased, accompanied by the growth of the patent 
system and patent laws ; turnpikes, canals, and rail- 
roads developed the means of communication through 
the country. All these important economic changes 
produced novel legal problems, and especially in the 
cases presenting great constitutional questions which 
arose out of the new financial and business conditions. 
During the fifteen years, however, from 1800 to 1816, 
the subjects of litigation with which the Court had 
been called to deal had been very limited. Of the 
four hundred cases decided by it, one quarter had 
involved questions of war, neutrality, prize, embargo 
and non-intercourse ; nearly another quarter had in- 
volved mere questions of practice or procedure ; 
eleven presented questions of slavery ; ten, of citizen- 
ship, and only a scant half dozen presented any con- 
stitutional question. 

With the close of the 1816 Term, there also came 
to an end the series of reports published unofficially 
\$y William Cranch (then Judge of the Circuit Court 



THE JUDGES AND THE COURT-ROOMS 455 

of the District of Columbia) ; and for the first time 
an official Reporter, Henry Wheaton of New York, 
was appointed by the Court, under a new law enacted 
in 1816. 1 In considering the effect of the decisions 
of the Court during this early period, it must be con- 
stantly borne in mind that, except so far as the opinions 
were published in the newspapers, little was known of 
them by the general public or even by the Bar. The 
newspaper publications and comments, therefore, were 
the great factor in forming public sentiment regard- 
ing the Court. 2 Many years elapsed before the Su- 
preme Court Reports obtained any wide sale or cir- 
culation among lawyers. Even as late as 1830, the 
Reporter, Richard Peters, stated that "few copies 
were found in many large districts of the country. 
In some of these districts, not a single copy of the re- 
ports are in the possession of anyone", and he urged 
a greater circulation, in order to disseminate "knowl- 
edge of the labours and usefulness of this tribunal", 
and to produce "a corresponding increase with the 
people of the United States of their attachment and 
veneration for this department of their government. 

1 By Act of March 22, 1816, provision was made for the first time for an official 
publication of the decisions of the Court, but with no provision for a salary to the 
Reporter. By Act of March 3, 1817, to remain in force three years, provision was 
made for a Reporter with a salary of $1000. This measure was warmly supported 
by Chief Justice Marshall, who wrote a letter to the Senate, Feb. 7, 1817. Amer. 
State Papers, Misc., II, No. 426. 

2 In 1816, according to Webster's argument in Wheaton v. Peters, 8 Peters, 651, 
Mr. Cranch's reports had been published as far as the sixth volume ; the rest of 
the matter which afterwards formed the remaining volumes was in manuscript. 

Not until March 14, 1834, was there any order that all opinions of the Court 
must be filed with the Clerk. See 8 Peters, vii. Under this rule, the MSS rec- 
ord of opinions begins with the January Term, 1835. The printed record does not 
begin until the December Term, 1857. The practice of delivering opinions in writ- 
ing was exceptional at first, but by the time of Cranch had become the rule. There 
is no means of knowing whether in the time of Dallas and Cranch, the Court deliv- 
ered any written opinions which the Reporter failed to report. It is certain from 
Wheaton's own preface that he used his discretion in omitting some cases from 
which no important question or general rule could be extracted. Peters probably 
reported nearly everything, 131 U. S. Appendix xvi, xvii. 



456 THE SUPREME COURT 

Few of our citizens know what this Court has done for 
them." 1 

A new era for the Court with respect to its place 
of session began also with the end of the 1816 Term ; 
for owing to the burning of the Capitol in the pre- 
vious year it became necessary to reconstruct the 
Court-room. As early as 1805, the small room orig- 
inally occupied by it on the first floor of the Cap- 
itol had become wholly insufficient. "The crowd of 
citizens that sometimes attend the Court and nec- 
essarily fill the passages and vestibules disturb the 
Legislative proceedings as well"; 2 reported Latrobe, 
the architect and Surveyor of Public Buildings ; and 
in 1806, he proposed a plan to appropriate the whole 
basement story to the use of the Judiciary, and to 
raise the floor of the Senate Chamber to the level of 
the first or principal story. By 1808, the North Wing 
of the Capitol, especially the Senate Chamber it- 
self, had fallen into great disrepair ; and Latrobe re- 
ported that: "The accommodations of the Senate and 
of the Court are very far from being convenient for the 
dispatch of public business. . . . The present cham- 
ber of the Senate cannot be considered as altogether 
safe, either as to the plastering, of which the columns 
and entablature consist, or as to the floors and ceil- 
ing. " President Jefferson suggested an entire re- 
construction of the Senate Chamber, by laying a new 
floor at the level of the Senate Gallery, removing the 
ceiling so as to give additional elevation to the new 
Chamber, replacing with stone and brick the columns 
and arches which were then of wood and stucco, and 

1 Daniel Webster reviewing Volume Three of Wheaton in 1818, said : "The sale 
is not very rapid. The number of law libraries which contain a complete set 
is comparatively small." North Amer. Rev. (1818), VIII; Amer. Quart. Rev. (1830), 
VII. 

2 Report of Surveyor of Public Buildings, transmitted by the President to Con- 
gress, Dec. 27, 1805. 



THE JUDGES AND THE COURT-ROOMS 457 

by devoting the room thus formed below in the base- 
ment to the use of the Court. 1 This work was begun 
in 1808-1809, and during its progress the Court sat 
in the room on the west side of the main floor, which 
had previously been occupied by the House of Repre- 
sentatives and later by the Library of Congress. It 
appears thus that the second Court-room was the 
quarters now occupied by the Clerk of the Court. At 
the close of the 1809 Term, the Court vacated this 
room, and it was turned over to the Senate for its May 
special session. 2 During the February Term of 1810, the 
repairs had been so far completed that the Court again 
moved its quarters, 3 and sat in the new, and third, 
Court-room on the basement floor underneath the 
new Senate Chamber, a vivid description of which was 
written by the noted Philadelphia lawyer, Charles 
J. Ingersoll : "Under the Senate Chamber, is the 
Hall of Justice, the ceiling of which is not unfanci- 

1 letter of Jefferson to Latrobe, July 25, 1808, quoted in History of the Capitol 
(1900), by Glenn Brown, 25, 44; see also 10th Cong., 1st Sess., 27, 49 et seq. 

2 During the construction of the new Court-room, the vault fell in, killing the 
superintendent of the work. See Connecticut Courant, Sept. 28, 1808. A report on 
the Capitol made to the Senate in 1809, stated: "1 therefore propose to you to 
remove the rough seats, benches and enclosures, erected for the accommodation of 
the Supreme Court . . . and thus, at a moderate expense, to provide a chamber 
which will unite every requisite of convenience and comfort, and will enable the 
Senate to await, without being in the smallest degree incommoded by the delay, 
the completion of the permanent chamber." Documentary History of the Capitol 
(1904), 154, 162. 

It is probable that during part of 1809 or 1810, the Court may have sat for a 
part of the time in one of the Washington hotels ; for in a letter from Latrobe, on 
January 3, 1811, there occurs the following reference: "The expense of fitting 
up and furnishing the Court-room, having never been estimated by me or contem- 
plated by the words of any law making appropriation for the public buildings, I 
took no steps whatever to fit up and furnish the room, until the propriety of so 
doing was urged by the Judges of the Courts, who had been obliged to hold their 
sittings at a tavern. I then understood that the contingent fund of the Judiciary 
was liable to this expense . . . under these impressions, the Court-room was fitted 
up and furnished. . . ." This would appear to be a positive statement that the 
Judges of the Courts had held their sittings at a tavern. 

3 Latrobe in his report, Dec. 11, 1809, says : "The Court-room, the office of the 
Clerk of the Supreme Court and the office and library of the Judges have also 
been completed and may be occupied the approaching session of the Court." 



458 THE SUPREME COURT 

fully formed by the arches that support the former. 
The Judges in their robes of solemn black are raised 
on seats of grave mahogany ; and below them is the 
bar; and behind that an arcade, still higher, so con- 
trived as to afford auditors double rows of terrace 
seats thrown in segments round the transverse arch 
under which the Judges sit. . . . When I went into the 
Court of Justice yesterday, one side of the fine fo- 
rensic colonnade was occupied by a party of ladies, 
who, after loitering some time in the gallery of the 
Representatives, had sauntered into the hall, and 
were, with their attendants sacrificing some impa- 
tient moments to the inscrutable mysteries of plead- 
ing. On the opposite side was a group of Indians, 
who are here on a visit to the President (papa of the 
savages) in their native costume, their straight black 
hair hanging in plaits down their tawny shoulders, with 
mockassins on their feet, rings in their ears and noses, 
and large plates of silver on their arms and breasts. " l 
Above this Court-room was the Senate Chamber, on 
whose walls there hung, from 1800 to 1814, the portraits 
of Louis XVI and Marie Antoinette, which had been 
presented to the Continental Congress in 1784. That 
the walls of the room which has now become the home 
of the Court were, in former days, thus embellished 
adds a touch of romance to that severe and impressive 
sanctuary. 2 

On August 24, 1814, the Capitol was burned by the 
British troops, being set on fire by means of rockets, 

1 Inchiquin, the Jesuit's Letters (1810), by Charles J. Ingersoll. 

2 For references to these portraits see History of the National Capitol (1914), 
by J. W. Bryan; Diary of Mr. William Thornton, in Columbia Hist. Soc. Proc. 
(1907), X ; (1911), XIV ; Sketches of Debate in the First Senate of the United States, 
by William Mac-lay, entry of Feb. 26, 1791 ; 13th Cong., 1st Sess., July 19, 1813, 
resolve introduced by Mr. Bledsoe; Aug. 1, 1813, resolve of the Senate. The 
latest reference to the portraits is in a letter of June 20, 1812. staling that they 
had been removed from the rotunda; see Col. Hist. Soc. Rcc. (1914), XVII. 



THE JUDGES AND THE COURT-ROOMS 459 

tar barrels found in the neighborhood, broken fur- 
niture, and heaps of books from the library. "Great 
efforts were made to destroy the Court-room, which 
was built with uncommon solidity, by collecting 
into it and setting fire to the furniture of the adjacent 
rooms. By this means, the columns were cracked 
exceedingly, but it still stood and the vault was un- 
injured. It was, however, very slenderly supported 
and its condition dangerous," reported Latrobe, the 
architect, later. 1 Although the Thirteenth Congress 
met in special session on September 19, 1814, in a 
building used for a hotel on the corner of Eighth and 
E Streets, N.W., and although it later occupied a 
building especially erected for its use at the corner 
of A and First Streets, N.E. (known as the "Brick 
Capitol"), it neglected to make any provision for the 
Judicial branch of the Government. Hence, during 
the 1815 Term, the Court was forced to seek tem- 
porary quarters in a large double house on the site 
of 204-206 Pennsylvania Avenue, S.E., then occupied 
by its Clerk, Elias Boudinot Caldwell, and located 
east of the present Capitol and south of the "Brick 
Capitol." 2 In the 1817 and 1818 Terms, the Court 
sat in an office temporarily prepared for its use in 
the less [ruined portion of the North Wing of the 
Capitol — a room variously described as "a mean 
apartment of moderate size", "a mean and dingy 
building", "little better than a dungeon." 3 These 

1 History of the Capitol (1900), by Glenn Brown, 48, report of Latrobe to Con- 
gress, Nov. 28, 1816. 

2 Jeremiah Mason wrote to Rufus King, Dec. 15, 1816: "Bailey, a reformed 
gambler from Virginia, has taken and fitted for a tavern the house south of the 
Old Capitol where the Supreme Court held their session last winter, together with 
the house adjoining." Correspondence of Jeremiah Mason (1873), by George A. 
Hillard. 

3 Works of Rufus Choate (1862), I, 514, giving Chauncey Goodrich's description; 
Congressional Reminiscences (1882), by John Wentworth, giving Webster's descrip- 
tion ; see also History of Washington (1914), by W. B. Bryan, II, 37, 38. 



460 THE SUPREME COURT 

were thus its fourth and fifth Court-rooms. By 
1819, the rebuilding of the Capitol was complete 
enough to allow the Court to move back into the 
room below the Senate, of which a contemporary 
newspaper wrote as follows: "We are highly pleased 
to find that the Court-room in the Capitol is in a state 
fit for the reception of the Supreme Court. We shall 
not pretend to describe in the terms of art the struc- 
ture and decoration of this apartment, though we 
will endeavor to prevail on some qualified person to 
do it for us. It is such as to have an effect on the be- 
holder, considerably more agreeable than that which 
was produced on entering the same apartment, pre- 
vious to the re-modification of it made necessary by 
the conflagration of the interior of the Capitol. " l A 
less complimentary but more vivid picture of the 
new Court-room was given by a New York news- 
paper correspondent, five years later, in 1824, at the 
time of the argument of the noted case of Gibbons v. 
Ogden. 2 'The apartment is not in a style which 
comports with the dignity of that body, or which 
wears a comparison with the other Halls of the Cap- 
itol. In the first place, it is like going down cellar 
to reach it. The room is on the basement story in 
an obscure part of the north wing. In arriving at 
it, you pass a labyrinth, and almost need the clue of 
Ariadne to guide you to the sanctuary of the blind 

1 National Intelligencer, Feb. 2, 1819. 

2 New York Statesman, Feb. 7, 24, 1824; see also description in 1827 by Oliver 
Hampton Smith, Senator from Indiana, in Early Indiana Trials and Sketches (1858). 
"The Judgment hall with its low browed roof and short columns modelled after 
the prison of Constance in Marmion." Travels in Canada and the United States 
(1818), by Lieut. Francis Hall. "By no means a large or handsome apartment; 
and the lowness of the ceiling and the circumstances of its being under ground, 
give it a certain cellarlike aspect, which is not pleasant. This is, perhaps, unfortu- 
nate, because it tends to create in the spectator the impression of justice being 
done in a corner." Men and Manners in America (1833), by Thomas Hamilton; 
see also Travels through West of the United States and Canada in 1818 and 1819 
(1823), by John M. Duncan. 



THE JUDGES AND THE COURT-ROOMS 461 

goddess. A stranger might traverse the dark ave- 
nues of the Capitol for a week, without rinding the re- 
mote corner in which Justice is administered to the 
American Republic ... a room which is hardly 
capacious enough for a ward justice. The apart- 
ment is well finished ; but the experience of this 
day has shown that in size it is wholly insufficient 
for the accommodation of the Bar, and the specta- 
tors who wish to attend. Many of the members were 
obliged to leave their seats to make room for the 
ladies, some of whom were sworn in, and with much 
difficulty found places within the Bar. It is a triangu- 
lar, semi-circular, odd-shaped apartment, with three 
windows, and a profusion of arches in the ceiling, 
diverging like the radii of a circle from a point over 
the bench to the circumference. . . . Owing to the 
smallness of the room, the Judges are compelled to put 
on their robes in the presence of the spectators, which 
is an awkward ceremony, and destroys the effect intended 
to be produced by assuming the gown. The appur- 
tenances of the Court are in no wise superior to the 
apartment itself. Two brown stone pitchers with a 
few glasses to furnish the speakers with water are the 
only movables in the room ; and the fixtures are not 
very remarkable for conveniences or elegance." The 
Judges sat on a long seat at the east end of the room 
on a raised platform. The floor of the bar, three 
feet lower, was carpeted, and on it was a long table 
in front of the Judges with cushioned roller armchairs 
for the lawyers. The Attorney-General sat at the 
right of the Judges, the Clerk at the left, the Mar- 
shal at the platform on the left. In front of the Judges 
on the opposite wall was a marble bas-relief depict- 
ing Fame crowned with the rising sun and pointing 
to the Constitution, and Justice holding the scales 



462 THE SUPREME COURT 

evenly balanced." l The following description of the 
room was made in 1842 : "The light is admitted from 
the east and falls too full upon the attorney who is ad- 
dressing the Court. This has been somewhat softened 
by transparent curtains and Venetian blinds. On 
the wall in a recess in front of the bench is sculptured 
in bold relief, the figure of Justice holding the scales 

1 In Sketches of Public Characters (1830), by Ignatius Loyola Robertson (Samuel 
L. Knapp), an amusing description of this bas-relief by Franzoni, reproduction of 
which now appears on the engraved certificates of admission to practice before 
the Supreme Court, is given as follows: "The ornaments of the Court Room are 
not numerous. The only one worthy of particular attention is a group opposite 
the bench of justice. On the left, as seen from the bench, is a figure too lank and 
lean for a cupid or an angel ; but it is probably intended for one or the other of these 
supernatural beings, or perhaps for the Genius of the Constitution. The figure 
has wings, and holds the Constitution of the United States in its hand. On the 
head of this figure, whatever it may be, is a glory or a schekina. This is in bad 
taste. It is attempting too much, and therefore produces a failure. All the other 
parts of the design are classical. This is from sacred history. The middle figure 
is Justice sitting on a chair (Phidias or Praxiteles knew nothing of such a seat for 
the goddess) with her right arm leaning on her sword, and holding the equal scales 
in her left. The face of this figure is excellent, and the drapery flowing and easy. 
Her proportions are rather more delicate than those in which the ancients exhib- 
ited the inflexible goddess. Before her sits the bird of wisdom, perched near some 
volumes of law ; but the owl is formed in the modern school, and the Capitol to 
a groat, Minerva would not know her bird if she should see him so beaked, so feath- 
ered, so trim and dovelike, unless she should guess it out by recognizing her sister 
Justice, in the form of this belle, or resort to her divinity to discover the whole group 
in their transformation." And in the New York Statesman, Feb. 7, 1824, an- 
other picturesque comment was made as to this bas-relief: "It is a remarkable 
circumstance in this allegorical representation that the bandage is removed from 
the eyes of Justice, and her hand, instead of delicately holding the scales of justice, 
firmly grasps the beam in such a way as to prevent the balance from vibrating, 
whatever may be the weight thrown into either scale. This grotesque device gave 
rise to the following jew d' esprit which appeared in the Intelligencer: 

A naked non-descript upon whose head 

The sun is pouring his unsparing rays, 
Whose two huge wings in vain he strives to spread 

For shelter from so bold and broad a blaze. 
'Graved by the lithographic art on stone 

The Statesman's plaything, dandled on his arm, 
Obliterate all but the bare name alone 

In which exists its all-sufficient charm. 
Next him sits Justice, ever broad awake, 

(For here they have not thought it fit to blind her), 
Who, with an arm too large for weight to break, 

Thrusts the scales forward while she looks behind her. 
Next her, the Nation's Eagle lifts its claws 

And boldly tramples on the prostrate laws." 



THE JUDGES AND THE COURT-ROOMS 463 

in front, and that of Fame, crowned with the rising sun, 
pointing to the Constitution of the United States. 
On a stone bracket attached to the pier of one of 
the arches on the left of the fireplace is a fine bust in 
marble of Chief Justice Ellsworth, and on a similar 
bracket on the right is a marble bust of Chief Justice 
Marshall. The members of the Bar are accommo- 
dated with mahogany desks and armed chairs within 
the bar, which is about two feet below the level of 
the floor of the loggia and lobby, and the audience 
with sofas, settees and chairs. The Judges have each 
a mahogany desk and chair." * 

And just a few years before the Court, in 1860, 
moved to its present Court-room (the Senate Chamber 
from 1808 to 1860), a Boston lawyer wrote this im- 
pression of its surroundings, in which the interest- 
ing statement was made that the Judges did not sit 
on a substantially elevated bench, as at present : 2 
"The part where the Judges sit is divided from the 
bar by a neat railing; within the bar are four tables, 
in two rows, for the use of the profession ; outside the 
bar-enclosure are the seats for the visitors and spec- 
tators ; beyond the railing are the Judges ' seats upon 
pretty nearly a level with the floor of the room, not 
elevated as are our Judge's seats. By the side of 
the railing are nine neat desks, and behind them, as 
many comfortable high-backed chairs for the use of 
the Judges ... In an alcove back of the seat of the 
Chief Justice and nearly up to the ceiling is a small 
portrait of Chief Justice Marshall." 

Of the Judges who occupied these Court-rooms 
during the Chief Justiceship of Marshall, many strik- 
ing personal depictions have been given by contem- 

1 Memories of Washington (1842), by George Watterston. 

2 American Law Register (Oct., 1854), II, 706. 



464 THE SUPREME COURT 

poraries. Joseph Story described their appearance 
in 1808 as follows. " Marshall is of a tall, slender figure, 
not graceful nor imposing, but erect and steady. His 
hair is black, his eyes small and twinkling, his forehead 
rather low, but his features are in general harmonious. 
His manners are plain, yet dignified ; and an unaffected 
modesty diffuses itself through all his actions. His 
dress is very simple, yet neat; his language, chaste 
but hardly elegant ; it does not flow rapidly, but it 
seldom wants precision. In conversation he is quite 
familiar, but is occasionally embarrassed by a hesitancy 
and drawling. His thoughts are always clear and in- 
genious, sometimes striking, and not often inconclusive ; 
he possessed great subtilty of mind, but it is only 
occasionally exhibited. I love his laugh, — it is too 
hearty for an intriguer, — and his good temper and 
unwearied patience are equally agreeable on the bench 
and in the study. His genius is, in my opinion, vig- 
orous and powerful, less rapid than discriminating, 
and less vivid than uniform in its light. He examines 
the intricacies of a subject with calm and persevering 
acuteness. He has not the majesty and compactness 
of thought of Dr. Johnson ; but in subtle logic he is 
no unworthy disciple of David Hume. Washington 
is of a very short stature, and quite boyish in his ap- 
pearance. Nothing about him indicates greatness ; 
he converses with simplicity and frankness. But he 
is highly esteemed as a profound lawyer, and I believe 
not without reason. His written opinions are com- 
posed with ability, and on the bench, he exhibits great 
promptitude and firmness in decision. It requires 
intimacy to value him as he deserves. Livingston 
has a fine Roman face ; an aquiline nose, high forehead, 
bald head, and projecting chin, indicate deep research, 
strength, and quickness of mind. I have no hesitation 



THE JUDGES AND THE COURT-ROOMS 465 

in pronouncing him a very able and independent Judge. 
He evidently thinks with great solidity, and seizes on 
the strong points of argument. He is luminous, de- 
cisive, earnest and impressive on the bench. In pri- 
vate society he is accessible and easy and enjoys with 
great good humor the vivacities, if I may coin a word, 
of the wit and the moralist. Of Chase, I have formerly 
written. On a nearer view, I am satisfied that the 
elements of his mind are of the very first excellence ; 
age and infirmity have in some degree impaired them. 
His manners are coarse, and in appearance harsh ; but 
in reality he abounds with good humor. He loves to 
croak and grumble, and in the very same breath he 
amuses you extremely by his anecdotes and pleasantry. 
His first approach is formidable, but all difficulty van- 
ishes when you once understand him. In person, in 
manners, in unwieldy strength, in severity of reproof, 
in real tenderness of heart, and above all in intellect, 
he is the living, I had almost said the exact, image 
of Samuel Johnson. To use a provincial expression, 
I like him hugely. I ought not to pass by Judge John- 
son, though I scarcely know how to exhibit him in- 
dividually. He has a strong mathematical head, and 
considerable soundness of erudition. He reminds me 
of Mr. [Levi] Lincoln, and in the character of his mind, 
he seems to me not dissimilar. He has, however, 
less of metaphysics, and more of logic. This is the 
first time of Judge Todd's appearance on the bench, 
and as he is a modest, retired man, I cannot delineate 
him. He does not appear to want talents." Seven 
years later, George Ticknor of Boston wrote, in 1815 : 
"I passed the whole of this morning in the Supreme 
Court. The room in which the Judges are compelled 
temporarily to sit is, like everything else that is official, 
uncomfortable, and unfit for the purposes for which 



466 THE SUPREME COURT 

it is used. They sat — I thought inconveniently — 
at the upper end ; but as they were all dressed in flow- 
ing black robes, and were fully powdered, they looked 
dignified. The Chief Justice of the United States is 
the first lawyer — if not, indeed, the first man in the 
country. You must then imagine before you a man 
who is tall to awkwardness, with a large head of hair, 
which looked as if it had been lately tied or combed, 
and with dirty boots. You must imagine him, too, 
with a strangeness in his manners, which arises neither 
from awkwardness nor from formality, but seems to 
be a curious compound of both ; and then, perhaps, 
you will have before you a figure something like that 
of the Chief Justice. His style and tones in conversa- 
tion are uncommonly mild, gentle, and conciliating ; 
and before I had been with him half an hour, I had 
forgotten his carelessness of his dress and person, and 
observed only the quick intelligence of his eye, and the 
open interest he discovered in the subjects on which 
he spoke, by the perpetual variations of his counte- 
nance. 1 Judge Washington is a little, sharp-faced gentle- 
man, with only one eye, and a profusion of snuff dis- 
tributed over his face ; and Judge Duval very like 
the late Vice-President. " And in 1824 at the argu- 
ment of Gibbons v. Ogden sl New York newspaper corre- 
spondent described the appearance of the Judges who 
listened to Webster's argument as follows. "At 
eleven o'clock, you see the Judges, sometimes together, 
and at others, one at a time, enter the lobby in rear of 
the bench, and assume their robes, in the same manner 
as a farmer puts on his frock, or the sportsman his 

1 Story, I, 166, letter of Feb. 25, 1808; Ticknor, I, 33, 36, letters of Feb. 1, 21, 
1815. Samuel G. Goodrich in Recollections of a Lifetime (1856), wrote of Marshall 
in 1820 that "he was tall and thin, with a small face expressive of acuteness and 
amiability. His personal manner was eminently dignified, yet his brow did not 
seem to me to indicate the full force of great abilities and lofty moral qualities." 



THE JUDGES AND THE COURT-ROOMS 467 

hunting shirt, preparatory to the pursuits of the day. 
There is commonly an officer in waiting to aid them in 
slipping on their black gowns, as a servant assists a 
lady in resuming her hat and mantle in an ante-cham- 
ber. ... In either case, changes of apparel should 
certainly take place behind the scene. . . . The 
Court sits from eleven o'clock in the morning until 
four in the afternoon. It is not only one of the most 
dignified and enlightened tribunals in the world, but 
one of the most patient. Counsel are heard in silence 
for hours, without being stopped or interrupted. If 
a man talks nonsense, he is soon graduated and passes 
for what he is worth. If he talks to the point, he will 
be properly measured, and his talents, discrimination 
and industry reflected in the opinion of the Court. 
The Judges of the Court say nothing, but when they 
are fatigued and worried by a long and pointless argu- 
ment, displaying a want of logic, a want of acuteness, 
and a destitution of authorities, their feelings and 
wishes are sufficiently manifested by their countenances 
and the manners which are displayed." The Chief 
Justice was "a large, thick-set, athletic man, with a 
grave, substantial complexion, and with no prominent 
features, his hair is of an iron gray, cut short before 
and tied in a club behind ; . . . His external ap- 
pearance indicates him to be what he is, in fact, a 
solid and substantial man, without an extraordinary 
share of genius, taste or elegance." Washington, at 
Marshall's right hand, had "a sallow countenance, not 
very strongly marked, but deeply furrowed by the hand 
of time and bearing the marks of infirm health. He wears 
his dark, unfrosted hair, long and combed back from 
his forehead." Todd, next on the right, was "a dark 
complexioned, good-looking, substantial man." Story, 
though the youngest on the Bench, looked older "by 



468 THE SUPREME COURT 

reason of his baldness and his glasses . . . below 
middle-size, of light, airy form, rapid and sprightly 
in his motions, and polished and courtly in his manners ; 
his countenance indicates genius, affability, versatility 
of thought, and almost anything but the patient re- 
search of the scholar and the gravity and wisdom of 
the Judge. Yet he is known to have been a laborious, 
indefatigable, not to say, plodding student, and to be 
among the first on the Bench for his legal attainments, 
his literary acquirements, and general knowledge." 
On Marshall's left hand, Johnson was "a large, athletic, 
well built man of sixty or upwards, with a full, ruddy 
and fair countenance, with thin white hair, and par- 
tially bald." Duval was "a patriarch in appearance 
with long, thin, and snowy locks, tall and spare, with 
a thin visage and prominent features." 

Three years after Gibbons v. Ogden, a lively description 
of the Court was given as it appeared, at the time of the 
argument of Brown v. Maryland in 1827, to an Indiana 
Congressman who was admitted to practice at that 
Term. 1 "The House having adjourned over from 
Friday to Monday, I took Saturday to look into the 
Supreme Court. ... I entered the room as the 
hand of the clock was pointed to eleven. The Judges 
were just coming in from their side-room. The Mar- 
shal met them and robed them with long, black, silk 
gowns, tied at the neck and reaching to the feet. . . . 
I had never seen anything like it before. It reminded 
me of the man who, having repeated several times that 
he would die at the stake for the religion of his father, 
was asked, 'What was your father's religion?' 'I 
do not exactly know, but it was something very sol- 
emn.' So with me ; I did not exactly know what 

1 Early Indiana Trials and Sketches; Reminiscences (1858), by Oliver Hampton 
Smith. 



THE JUDGES AND THE COURT-ROOMS 469 

the gowns were for, but I thought the Court looked 
very solemn. . . . The Judges were all seated, 
and the Marshal, in a kind of nasal tone, cried out : 
"Yea, yea, yea, yea! The Supreme Court of the 
United States is now in session. All persons having 
business before the Court, will be heard. God save 
the United States and this honorable Court !'.... 
Court was opened. Chief Justice Marshall was seated 
in the middle, on his right were Justices Story, Thomp- 
son and Duval ; on his left, Washington, Johnson and 
Trimble. William Wirt, Attorney-General, was at his 
desk, and the Clerk at his table. . . Chief Justice 
Marshall . . . was above the common height; his 
features strongly marked ; an eye that spoke the high 
order of his intellect. He wore a short cue, black 
coat, breeches buckled at the knee, long, black, silk 
stockings, and shoes with fine buckles. 1 His manner 
on the bench was exceedingly kind and courteous to 
the Bar. He heard with I lie greatest attention the 
arguments and authorities of counsel. Judge Bushrod 
Washington, who sat at the left of the Chief Justice, 
was a much smaller man than Judge Marshall, vener- 

1 Ben Perley Poore in his Reminiscences of Sixty Years in the National Metropolis 
(1886), described Marshall at this time as "a tall, gaunt man with a small head and 
bright black eyes. He used to wear an unbrushed, long-skirted black coat, a badly 
fitting waistcoat and knee breeches, a voluminous white cravat, generally soiled, 
and black worsted stockings, with low shoes and silver buckles." Mrs. Anne 
Royall in The Black Book or A Continuation of Travels in the United States described 
Marshall in 1828 as a "slender, keen-made man, of the finest mould, above the 
common height. . . . His face like his person is thin and rather narrow. . . . His 
dark, keen eye and his arched brow seem to be the only part of his venerable form 
that have escaped the ravages of time." The National Gazette writing of this Term, 
March 1, 1827, said : "The Chief Justice is strait and hale, and his mental powers 
seem to have undergone no decline. There never was a more upright, perhaps 
never an abler Judge. His elaborate opinions are masterpieces of judicial logic and 
philosophical law." A comment as to the attitude of the Court made by a corre- 
spondent of the Boston Courier, about this time, is also notable, that "its method, 
caution and precision, and a courtesy towards the Bar, in which there is no affec- 
tation, cannot fail to strike the mind of every visitor. ... It is the only place in 
the Capitol where a safe comparison can be drawn between the intellectual power 
of individuals." National Intelligencer, March 10, 1830. 



470 THE SUPREME COURT 

able in appearance, with a face the index of a long 
life of laborious thought; his reported opinions show 
that he had a sound legal mind, but not of the very 
first order. 1 Judge Story was at that time young- 
looking, though the hair had left the fore part of his 
head. He was of the common size of man, fine features, 
and a countenance marking him as a deep thinker. He 
was considered at that early day the commercial Judge 
of the Bench. . . . Judge Gabriel Duval was the 
oldest-looking man on the Bench. His head was as 
white as a snow-bank, with a long white cue hanging 
down to his waist. He did not impress me at the time 
as being even up to mediocrity on the Bench. Judge 
Johnson looked like a good-natured fat alderman of 
fifty-five. I thought he would not kill himself with 
labour ; was rather a surface than a deep Judge. He 
was a good man, but never ranked with the first in- 
tellects on the Bench. Judge Trimble was compara- 
tively a young man at that time, to all appearances of 
a robust and strong constitution. He looked as if he 
would be one of the last to be called away, and yet he 
was one of the first." Of the attitude of the Judges 
toward counsel, striking comment was made by a 
Philadelphia lawyer of the period: "The eyes of all 
the Judges were centred upon the speaker and mind 
seemed to meet mind through the visual organ. ... It 
mattered not by whom the Court was addressed — 
Mr. Pinckney, Mr. Wirt, Mr. Sergeant, Mr. Binney, 
Mr. Webster or Mr. Ingersoll, received the same and 

1 Ben Perley Poore described Bushrod Washington as "a small, insignificant 
looking man deprived of the sight of one eye by excessive study, negligent of dress 
and an immoderate snuff taker. . . . When Mr. Clay stopped, one day, in an 
argument and advancing to the bench, took a pineh of snuff from Judge Wash- 
ington's box, saying, — ' I perceive that your Honor sticks to the Scotch' and then 
proceeded with his case, it excited astonishment and admiration. 'Sir,' said Mr. 
Justice Story, in relating the circumstances to a friend, 'I do not believe tHere is 
a man in the United States who could have done that, but Mr. Clay.' " 



THE JUDGES AND THE COURT-ROOMS 471 

no greater, apparent attention than any second or 
third rate lawyer arguing his first case. If any differ- 
ence was manifested, it was rather in favor of the 
young and inexperienced ; or those whose condition 
appealed to the sympathy of the Judges quite as much 
as to their judgment. " * 

At this period, the social season of Washington 
began with the opening of the Supreme Court Term. 
"The city begins to be gay, but the season of greatest 
festivity is after the Supreme Court commences its 
session," wrote a newspaper correspondent in Feb- 
ruary, 1818. "The arrival of the Judges, counsellors, 
parties, etc., connected with the High Court creates 
a great stir in the Metropolis. There are now tea and 
dining parties daily. The President gives two superb 
dinners a week, and sees gentlemen on business and 
etiquette every Wednesday. Every other Wednesday 
evening Mrs. Monroe holds a drawing room." 2 The 
Judges of the Court appear to have been assiduous 
diners-out. "We had the Judiciary company to dine 
with us, this day," wrote John Quincy Adams, when 
Secretary of State. "Chief Justice Marshall, the 
Judges Johnson, Story and Todd, the Attorney- 
General Wirt, and late District Attorney Walter Jones ; 
also Messrs. Harper, Hopkinson, D. B. Ogden, J. Ser- 
geant, Webster, Wheaton and Winder, all counsellors 
of the Court. . . . We had a very pleasant and con- 
vivial party, and I had occasion to repeat a remark 
made in former years, that there is more social ease 
and enjoyment in these companies, when all the guests 
are familiarly acquainted with one another, than at 
our usual dinners during the session of Congress, when 
we have from fifteen to twenty members assembled 

1 The Forum (1856), by David Paul Brown, I, 562. 

2 New York Commercial Advertiser, Feb. 7, 1818. 



472 THE SUPREME COURT 

from various parts of the Union, and scarcely ac- 
quainted together." * Charles J. Ingersoll, who at- 
tended the sessions of the Court from Philadelphia, 
about this period wrote in his diary : "It seems to me 
that the dinner-giving system has increased very much 
since I first knew this great watering place — will 
you let me call it — where amusement is a business, 
a need, to which almost everybody is given up from 
5 o'clock till bedtime. All the Secretaries give din- 
ners and balls frequently, I fancy weekly, and many 
other persons, who, I should think, can ill afford it. 
The Court and Bar dine today with the President. 
In my opinion, a Judge should never dine out in term 
time except Saturday and Sunday, if then. In Eng- 
land, I am told, they hardly ever do, and I fancy the 
pillars of Westminster Hall would marvel much if 
they could see the Supreme Court of the United States 
begin a day's session, aye, after robing and taking 
their places, by receiving from the Marshal their cards 
of invitation and taking up their pens to answer them 
before the list of cases is called for hearing." 2 As the 

1 J. Q. Adams, entry of March 8, 1821. 

2 Life of Charles- Jam! TngeraoU (1807), 123, by William M. Meigs, Feb. 14, 1823. 
Other entries at this time are interesting: 

"Feb. .5, 1823. The Drawing room this Evening neither so crowded, nor, I think, 
so pleasant as 1 have known such assemblies formerly. Mr. Adams, Mr. Calhoun 
and Mr. Thompson wore there, not Mr. Crawford, — all the Judges except 
Washington and Todd, the latter delayed at home in a fall, said to be serious — 
Mr. Clay in fine spirits. I understand that he talks unreservedly of his prospects 
of the Presidency, and says that he is confident of success. . . . 
"Feb. 20. At Secretary Thompson's ... we had the Chief Justice of the United 
States on one seat of honor and the Mexican Minister or Secretary of Legation, 
I did not ascertain which, on another, :ind Judges Johnson ;md Story. Fie on 
them for dining out so continually, tho how can they help under this raging 
star." 

George Ticknor writing, Jan. 16, 1825, said : "The regular inhabitants of the city 
from the President downwards, lead a hard and troublesome life. It is their 
business to entertain strangers, and they do it, each one according to his means, but 
all in a very laborious way. . . . The President gives a dinner once a week to thirty 
or forty people — no ladies present — in a wist cold hall. ... I was, however. 
at a very pleasant dinner of only a dozen, that he gave to Lafayette, when the old 
gentleman made himself very agreeable, but this was out of the common course. . . . 



THE JUDGES AND THE COURT-ROOMS 473 

Judges lived for the most part in the same lodgings 
their intercourse was necessarily of the closest kind, 
off as well as on the bench, and Judge Story, writing, 
March 8, 1812, said that: "It is certainly true, that 
Judges here live with perfect harmony, and as agree- 
ably as absence from friends and from families could 
make our residence. Our intercourse is perfectly 
familiar and unconstrained, and our social hours, when 
undisturbed with the labors of law, are passed in gay 
and frank conversation, which at once enlivens and 
instructs. Abroad, our rank claims and obtains the 
public respect; and scarcely a day passes in Court, 
in which parties of ladies do not occasionally come in 
and hear, for a while, the arguments of learned coun- 
sel. On two occasions, our room has been crowded with 
ladies to hear Mr. Pinkney, the present Attorney- 
General." ' 

Mr. Adams (the Secretary of State) gives a great dinner once a week, and Mrs. 
Adams a great ball once a fortnight. . . . Calhoun's, however, was the pleasant- 
est of the ministerial dinners, because he invited ladies, and is the most agreeable 
person in conversation at Washington — I mean of the Cabinet. . . . The truth 
is, that at Washington society is the business of life. . . . People have nothing 
but one another to amuse themselves with ; and as it is thus obviously for every 
man's interest to be agreeable, you may be sure very few fail." Ticknor, I, 349. 

1 The mention in this letter of the presence of ladies in the Court-room recalls 
the fact that their attendance was very common at that date, and influenced the 
argument of counsel — particularly of Pinkney. An amusing example was given 
by William Wirt in a letter to F. W. Gilmer, April 1, 1816, regarding the argument 
of Jones el al. v. Shore's Ex'ors, 1 Wheat. 462, in which he spoke of Pinkney : "At 
the Bar, he is despotic, and cares as little for his colleagues or adversaries as if they 
were men of wood. ... In the cause in which we were engaged against each 
other, there never was a case more hopeless of eloquence since the world began. 
It was a mere question between the representatives of a dead collector and a living 
one, as to the distribution of the penalty of an embargo bond — whether the 
representatives of the deceased collector, who had performed all the duties and 
recovered the judgment, or the living collector, who came in about the time the 
money was paid by the defendant into Court, and had, therefore, done none of the 
duties, was entitled to the award. I was for the representatives of the deceased 
collector — Pinkney for the living one. You perceive that his client was a 
mere harpy who had no merits to plead. There were ladies present — and 
Pinkney was expected to be eloquent at all events. So the mode he adopted was 
to get into his tragical tone, in discussing the construction of an Act of Congress. 
Closing his speech in this solemn tone, he took his seat, saying to me, with a smile, 
' that will do for the ladies. ' " Wirt, I, 404 ; Marshall, IV, 133, 134, 140. 



CHAPTER ELEVEN 



CORPORATE CHARTERS AND BANKRUPTCY 



1817-1819 

A new epoch in its history began with the first year 
of President Monroe's Administration ; and as this was 
known in politics as "the Era of Good Feeling", so it 
might be termed in judicial annals "The Era of Calm", 
preceding a storm of controversy which was about 
to rage around the Court for the next thirteen years. 
The 1817 Term was chiefly devoted to the argument 
of prize and other cases arising out of the War of 1812, 
and no decisions of permanent significance were 
rendered. 1 The 1818 Term, however, was notable for 
the decision of one case and the argument of another 
which marked the Court's importance as a factor in 
American history. In the first of these cases, Gelston 
v. Hoyt, 3 Wheat. 246, there was strikingly reaffirmed 
the cardinal principle of the Anglo-Saxon system of 
law that no man — not even the President of the 
United States — is above the law. The question 
involved was whether certain Government officials, 
who had been sued for damages for making seizure of 
a vessel under alleged authority of the neutrality 
laws, could justify their act by alleging that it was 

1 At this 1817, Term, an interesting custom among the members of the Bar 
appears from the following item in the National Intelligencer, Feb. 6, 1817. At 
a meeting of the members of the Bar presided over by Robert Goodloe Harper 
and with Walter Jones as Secretary, the Attorney-General presented resolutions 
on the death of Samuel Dexter of Massachusetts and Alexander J. Dallas of Pennsyl- 
vania, and it was resolved that the members of the Bar "will wear crape (fn the 
left arm during the present Term, as a mark of respect for the illustrious talents of 
the deceased in professional and their eminent virtues in private life." 



CORPORATE CHARTERS — BANKRUPTCY 475 

done by express order of President Madison. Attorney- 
General Rush argued in their behalf that it has been 
" the wise policy of the law, by enactments and decisions 
co-extensive with the range of public office, to throw 
its shield over officers while acting under fair and 
honest convictions." But as Ogden Hoffman and 
David B. Ogden, counsel for the plaintiff, pointed out, 
unless the act could be justified under some express 
authority, it was illegal, and "were it otherwise, the 
President would be a despot." The Court, through 
Judge Story, held that as no statute authorized the 
President to direct seizure by the civil officers, his 
order constituted no protection to them, if rights of 
an individual had been trespassed upon. Thus, for 
a third time and with regard to the instructions of 
three different Presidents (Adams, Jefferson and Mad- 
ison), the Court in its short career had shown its inde- 
pendence of the Executive, and its determination to 
prove to all that "the Constitution is a law for rulers 
and for people, equally in war and in peace, and covers 
with its shield of protection all classes of men at all 
times and under all circumstances." 1 

The other case which made this Term one of the 
most noted in the Court's history was Dartmouth 
College v. Woodward, 4 Wheat. 518. No lawsuit has 
since been more fully or graphically described; yet 
at the time of its argument, it attracted very little at- 
tention or interest from the legal profession or from 
the general public. And it is clear that no one antici- 
pated that a decision upon the question, whether the 
State Legislature of New Hampshire had the power 

1 " To the end that this shall be a government of laws and not of men", were the 
words of that clause of the Massachusetts Constitution of 1780 which distributed 
the powers of government. " The government of the United States has been 
emphatically termed a government of laws and not of men", Marshall had said 
in Marbury v. Madison. 



476 THE SUPREME COURT 

to amend in substantial particulars a corporate charter 
granted to trustees of a College, would affect the future 
economic development of the country. In the State 
Court, the Legislative power to divest vested rights 
had been attacked on common law grounds ; but now 
in the Supreme Court of the United States, since the 
case came up on writ of error to the State Court and 
not from the Federal Circuit Court, the appellants 
were confined to a consideration of the constitutional 
question alone, whether the State law was an impair- 
ment of the obligation of a contract. Though the 
Court had already decided four cases under this clause 
of the Federal Constitution, it had as yet never deter- 
mined whether a corporate charter was a contract. 1 
Thus a new point of constitutional law was to be 
presented in the case, and one destined to become "so 
imbedded in the jurisprudence of the United States 
as to make (it) to all intents and purposes a part of 
the Constitution itself." 2 The argument in this noted 
case began at eleven o'clock in the morning on March 
10, 1818. The adherents of the old charter, whose 
rights it was claimed had been impaired, had retained 
Daniel Webster of Massachusetts, then thirty-six 
years old, who had been a Member of Congress for the 

1 Fletcher v. Peck (1810), 6 Cranch, 87; New Jersey v. Wilson (1812), 7 Cranch, 
164; Terrett v. Taylor (1815), 9 Cranch, 43; Town of Fawlet v. Clark (1815), 9 
Cranch, 292. Judge Swayne said, in Edwards v. Kearzey (1878), 96 U. S. 595 : "The 
point decided in Dartmouth College v. Woodward had not, it is believed, when the 
Constitution was adopted, occurred to any one. There is no trace of it in the Fed- 
eralist or in any other contemporaneous publication. It was first made and 
judicially decided under the Constitution in that case. Its novelty was admitted 
by Chief Justice Marshall." It seems to have escaped the notice of legal historians 
that the point had been raised in New York as early as 1803, when (as stated in the 
newspapers of the day) : "An Act has passed the Legislature of New York chang- 
ing certain provisions of the Incorporation of the City of New York, extending 
right of suffrage for aldermen and members of the common council. Judge Kent, 
a member of the Council of Revision and a firm Federalist, has declared these 
alterations unconstitutional, and has attempted to establish the absolute invio- 
lability of charters." National Intelligencer, March 31, 1803; American Citizen 
(N. Y.), April 5, 1803 ; Republican Watchtower (N. Y.), March 30, April 5, 1803. 

2 Waite, C J., in Stone v. Mississippi (1880), 101 U. S. 814. 



CORPORATE CHARTERS — BANKRUPTCY 477 

past five years and a practitioner before the Court 
for the past four years. With him was Joseph Hopkinson 
of Pennsylvania, then forty -eight years old, who had 
never argued a constitutional case before the Court. 
For the other side, there appeared William Wirt, 
forty-six years of age, Attorney-General of the 
United States, and a lawyer of immense practice; 
and John Holmes of Maine, a man of forty-five years 
of age, a Member of Congress, a lawyer of far less 
caliber than the others but of political skill. 1 The 
argument consumed but three days, Webster taking 
most of the first day ; Holmes, the end of the first and 
the morning of the second ; Wirt, the afternoon of the 
second and part of the morning of the third ; and Hop- 
kinson, the balance of the time. The audience, as Web- 
ster later said, was "small and unsympathetic." 2 Of 
the characteristics of his associates and opponents at 
the Bar, Webster gave a vivid portrayal in his corre- 
spondence during the progress of the argument and 
later. 3 Of Holmes, he wrote that "he gave us three 
hours of the merest stuff that ever was uttered in a 
county Court," and again: "Holmes did not make a 
figure. I had a malicious joy in seeing Bell (Holmes' 
client), sit by to hear him, while everybody was grin- 
ning at the folly he uttered. Bell could not stand it. 
He seized his hat and went off." "Thus far there is 

1 For description of the cases previously argued by these counsel, see Historical 
Note on the Dartmouth College Case, by Charles Warren, Amer. Law Rev. (1912), XLVI. 

2 Congressional Reminiscences (1882), by John Wentworth, 42-46. See also 
statement of Chauncey Goodrich that the audience was "small, consisting chiefly 
of legal men." Worlcs of Rufus Choate (18G2), I, 515. On the other hand, another 
auditor, George Ticknor, wrote that: "The Court-room was excessively crowded, 
not only with a large assemblage of the eminent lawyers of the Union, but with 
many of its leading statesmen/' Amer. Quart. Rev. (1831), XVIII. 

3 Private Correspondence of Daniel Webster (1857), I, letters to William Sullivan, 
Feb. 17, 1818, to Jeremiah Mason, Feb. 22, 1818; Writings and Speeches of Daniel 
Webster (1903), XVI. And see for a general description of this case, The 
Dartmouth College Causes and the Supreme Court of the United States (1879), by John 
M. Shirley ; Daniel Webster (1883), by Henry Cabot Lodge ; Marshall, IV. 



478 THE SUPREME COURT 

nothing new or formidable developed. (All stuff.)" 
Of Wirt, he wrote on March 11 : " Mr. Wirt is to follow 
Mr. Holmes. He is a man of talents and will no doubt 
make the best of his case. Mr. Hopkinson is to reply 
and will make up for all my deficiencies, which were 
numerous. I am very much inclined to think the 
Court will not give a judgment this Term. All I 
shall at present add is that, from present appearances, 
I have an increased confidence that, in the end, justice 
will be done in this cause. Mr. Hopkinson has entered 
into this case with great zeal and will do all that man 
can do." At the close of Wirt's argument, he wrote 
again: "He is a good deal of lawyer, and has very 
quick perceptions and handsome power of argument, 
but he seemed to treat this case as if his side could 
furnish nothing but declamation. . . . He made an 
apology for himself that he had not had time to study 
the case, and had hardly thought of it till it was called 
on"; and again: "Wirt has talents, is a competent 
lawyer and argues a good cause well. In this case, 
he said more non-sensical things than became him." 
"Mr. Wirt said all that the case admitted." 1 Of 
his colleague, Hopkinson, Webster wrote: "Mr. Hop- 
kinson made a most satisfactory reply, keeping to 
the law and not following Holmes and Wirt into the 
field of declamation and fine speaking." "Mr. Hop- 

1 Writing, however, to Wirt a month later, April 5, 1818, Webster gave him more 
praise than he did in the letters, above quoted, to Mason, Smith and Brown ; for he 
wrote to Wirt, contradicting a report that he had disparaged Wirt's argument, 
that: "It is the universal opinion in this quarter . . .that that argument was a 
full, able, and most eloquent exposition of the rights of the defendant. I must 
leave it to you to infer whether this general sentiment is in concurrence with my 
own uniform declarations on the subject. ... In my opinion, no further discussion 
of questions involved in the cause, either at the Bar or on the Bench, will bring forth 
on the part of the defendant, any important idea which was not argued, expanded 
and pressed in the argument. ... I hope also you will think me not quite weak 
enough to depreciate the power of an adversary. If conquered, this would but 
increase the mortification of defeat. If conquering, it would take away the- glory 
of victory. In victory or defeat, none but a fool could boast that he was warring, 
not with giants, but with pigmies." 



CORPORATE CHARTERS — BANKRUPTCY 479 

kinson understood every part of our cause and in his 
argument did it great justice." The opinions of 
other auditors at the argument coincided with Webster's 
characterizations. "Holmes went up like a rocket 
and came down like a stick. The opinion was universal 
that Webster rose superior even to Wirt (though it 
is said that he appeared very well) and infinitely so 
to Holmes," wrote David Daggett, a Senator from 
Connecticut. "Webster shone like the sun and Holmes 
like a sunfish," wrote another. "Webster acquitted 
himself with the highest credit and produced the 
strongest sentiments of respect and admiration. Mr. 
Holmes fell below mediocrity," wrote Rufus King. 1 
Of Webster's own argument and its famous pa- 
thetic peroration, the contemporaneous descriptions 
are so widely known as to make their repetition unnec- 
essary. 2 Webster himself took a very modest view of 
its merits and attributed its value largely (and with 
some justice) to the remarkably able arguments made 
in the State Court by his associates, Jeremiah Mason 
and Jeremiah Smith. "I have told you very often," 
he wrote to Mason, "that you and Judge Smith argued 
it very greatly. If it was well argued at Washington, 
it is proof that I was right, because all that I said at 
Washington was but those two arguments clumsily put 
together by me." But if it was the learning and 
sagacity of his associates which served as the frame- 
work, it was the power of statement and vivid elo- 
quence of Webster himself which completed the massive 

1 Mason, letter of Daggett to Mason, March 18, 1818 ; King, II, letter of King 
to Christopher Gore, May 5, 1818. 

2 See description by Chauncey Goodrich in Works of Rufus Choate (1862), I; 
Life of Daniel Webster (1870), by George Ticknor Curtis, I; Remarks on the Life 
and Writings of Daniel Webster, by George Ticknor, Amer. Quart. Rev. (1831), 
XVIII; Daniel Webster— The Expounder of the Constitution (1905), by Everett 
P. Wheeler containing the first reproduction of a MSS description of Webster's 
argument by Judge Story, discovered in the Library of Congress. 



480 THE SUPREME COURT 

structure ; and it established forever his reputation as 
a great jurist. When the arguments were ended, 
however, in spite of the fact that, as Webster wrote, 
' 'nearly or quite all the Bar here are decidedly with 
us in opinion," the Court was not in agreement as 
to its decision. In answer to a question put by Holmes, 
it was forced to say that "it would pay to the subject 
the consideration due to an act of the Legislature 
of a State and a decision of a State Court, and that it 
was hardly probable a judgment would be pronounced 
at this Term" ; and on March 13, as stated in the 
National Intelligencer, "the Chief Justice observed 
that the Judges had conferred on the cause. Some of 
the Judges have not come to an opinion on the case. 
Those of the Judges who have formed opinions do not 
agree. The cause must therefore be continued until 
the next Term." On March 14, 1818, the Court 
adjourned "after a laborious session." ! Webster, 
writing on the same day, expressed his views as to the 
outcome : "I have no accurate knowledge of the manner 
in which the Judges are divided. The Chief Justice 
and Washington, I have no doubt are with us. Duval 
and Todd, perhaps against us ; the other three, holding 
up. I cannot much doubt but that Story will be 
with us in the end, and I think we have much more 
than an even chance for one of the others. I think 
we shall finally succeed." 

Before the opening of the next Term, Wirt's clients 
had determined to retain William Pinkney of Bal- 
timore and to ask the Court for a reargument. 2 Judge 

1 Niles Register, XIV, March 21, 1818. 

2 Private Correspondence of Daniel Webster (1857), I, letter of Hopkinson, Nov. 
17, 1818. Hopkinson wrote as to Pinkney : "I suppose he expects to do something 
very extraordinary in it, as he says, ' Mr. Wirt was not strong enough for it, has 
not back enough.' There is a wonderful degree of harmony and mutual respect 
among our opponents." Judge Story wrote to Henry Wheaton, Dec. 9, 1818, 
deploring Pinkney's disagreement with Wirt : "The world is wide enough for all 



CORPORATE CHARTERS — BANKRUPTCY 481 

Story evidently believed that the case would be 
reargued, for he wrote, December 9, 1818 : "The next 
Term of the Supreme Court will probably be the most 
interesting ever known. Several great constitutional 
questions, the constitutionality of the insolvent laws, 
of taxing the Bank of the United States, and of the 
Dartmouth College new charter, will probably be 
splendidly argued. Mr. Pinkney is engaged in these." 
On the other hand, Webster appears to have had 
confidence to the contrary ; for he wrote to Mason 
on the first day of the new Term of Court, February 
1, 1819: "Wirt and Pinkney still talk of arguing one 
of the College causes. On our side we smile at this, 
not being able to suppose them serious. I hope they 
will not attempt it, as it would only lead to embar- 
rassment about the facts. I should have no fears for 
the result." On the same day, he wrote to Timothy 
Farrar in a more worried tone : "The Court met today, 
present all but Todd. Mr. Pinkney will be in town 
today, and I suppose will move for a new argument in 
the case vs. Woodward. It is not probable, perhaps, 
that he will succeed in that object, altho I do not think 
it by any means certain. Not a word has as yet fallen 
from any Judge on the cause. They keep their own 
counseL All that I have seen, however, looks rather 
favorable. I hope to be relieved of further anxiety 
by a decision for or against us, in five or six days. I'd 
not have another such cause for the College plain and 
all its appurtenances." 

In the newspapers of the day, little attention was 
paid to the argument of this noted case, except by the 

the learning and genius, public virtue and ambition of all the wise and good, and it 
is a great mistake for a great man to indulge in an arrogant pride or a morbid 
jealousy in respect to his competitors or rivals. . . . All acknowledge his talents 
and his learning. He will gain by returning the acknowledgment in a just defer- 
ence to the talents of others." Story, I, 312. 

VOL. I — 16 



482 THE SUPREME COURT 

local press of New Hampshire and Massachusetts. 1 
A Washington correspondent of the Columbian Centinel 
in Boston wrote that it had been argued "before a very 
respectable and highly qualified audience of both 
sexes. ... Our friend Webster never made a happier 
effort. To a most elaborate and lucid argument he 
united a dignified and pathetic peroration which 
charmed and melted his hearers. Mr. Hopkinson was 
also as usual very strong and very eloquent in his con- 
clusion." And a correspondent of another Boston 
paper wrote: "Mr. Webster opened the cause in that 
clear, perspicuous, forcible and impressive manner for 
which he is so much distinguished; and for two or 
three hours enchained the Court and the audience with 
an argument which, for weight of authority, force of 
reasoning and power of eloquence, has seldom been 
equalled in this or any Court. Mr. Holmes opened the 
cause on the part of the University, and was followed 
by the Attorney-General, Mr. Wirt, in a very able and 
eloquent argument on the same side. Mr. Wirt's style 
is splendid, his manner vehement, and his action 
attended with much effort. Before he concluded he 
became so exhausted by his great efforts of voice and 
action, that he was obliged to request the Court to 
indulge him until the next day, expressing at the 
same time his regret 'that he had not profitted of 
the example of extreme coolness, which had been 
set by the counsel associated with him.' Mr. Hop- 
kinson closed the cause for the College with great 
ability, and in a manner which gave perfect satis- 
faction and delight to all who heard him. The 
cause stands continued for advisement. ... In the 
meantime, there' is no reason, I apprehend, for the 

1 Columbian Centinel, March 24, 1818; Boston Daily Advertiser, Mareh 23, 
1818. 



CORPORATE CHARTERS — BANKRUPTCY 483 

friends of the College to be disheartened or to relax in 
their efforts." x 

The Court met for the 1819 Term, for the first time 
"in the splendid room provided for it in the Capitol" 
(the room, now the Supreme Court Library, in which 
it sat until I860). 2 And at its first session, February 
2, the decision in the case was announced. As de- 
scribed by Webster in a jubilant letter to Mason : 
"As soon as the Judges had taken their seats, the 
Chief Justice said that in vacation the Judges had 
formed opinions in the College cause. He then im- 
mediately began reading his opinion, and, of course, 
nothing was said of a second argument. Five of the 
Judges concurred in the result, and I believe most, or 
all of them, will give their opinion to the Reporter. 
Nothing has been said in Court about the other causes. 
Mr. Pinkney says he means to argue one of them ; 
but I think he will alter his mind. There is nothing 
left to argue on. The Chief Justice's opinion was 
in his own peculiar way. He reasoned along from 
step to step ; and not referring to the cases, adopted 
the principle of them, and worked the whole into 
a close, connected and very able argument. Some 
of the other Judges, I am told, have drawn opinions 
with more reference to authorities." 3 

The judgment of the Court was a complete victory 

1 It is interesting to note the comment in the above letter on Wirt's and Holmes' 
arguments ; as it confirms the general impression that they were quite overmatched 
by the counsel on the other side, and also that there was not a perfect concord 
between the two associates. The New Hampshire Gazette, a year later, also ad- 
mitted that the University's side of the case had not been sufficiently prepared, 
saying that the counsel "were men overwhelmed with other business, unable 
to give this case proper attention, and consequently unprepared to meet those 
who came forward under every advantage." See Boston Daily Advertiser, Feb. 
25, 1819. 

2 See Niles Register, Feb. 20, 1819 ; see also National Intelligencer, Feb. 2, 1819. 

3 The National Intelligencer, in its issue of Feb. 6, 1819, giving a statement of the 
decision, began for the first time publication of a daily announcement of the cases 
argued and decided in the Court. 



484 THE SUPREME COURT 

for Webster's client. The Court held, for the first 
time, that a private corporate charter was a contract 
within the meaning of the clause of the Constitution 
forbidding impairment of the obligation of contract; 
that the College involved in this case was a private 
corporation; and that the legislation of New Hamp- 
shire amending its charter was invalid. Thus was 
established one of the fundamental principles of 
American law. But another phase of the decision 
was of importance in demonstrating the freedom of 
the Court from political bias. For the case had in- 
volved, not a mere abstract point of law, but a polit- 
ical issue, on which there had already begun to be 
divisions on party lines throughout the country. The 
old College Trustees were largely Federalist in poli- 
tics and were supported by the Federalist interests 
in New Hampshire. The new charter, the validity of 
which had been called in question, was the work of a 
College faction composed largely of stanch Repub- 
licans. Their leader, Governor William Plumer, had 
broached the subject of a change in the charter in his 
first message to the Legislature, stating that many of 
its provisions "emanated from royalty and con- 
tained principles . . . hostile to the spirit and genius 
of free government", with which a Legislature had 
power to interfere. Jefferson himself had written 
to Plumer that this message was replete with sound 
principles and truly Republican: "The idea that 
institutions established for the use of the Nation can- 
not be touched nor modified, even to make them an- 
swer their end, because of rights gratuitously sup- 
posed in those employed to manage them in trust for 
the public, may, perhaps, be a salutary provision 
against the abuses of a monarch, but it is most absurd 
against the Nation itself. Yet our lawyers and priests 



CORPORATE CHARTERS — BANKRUPTCY 485 

generally inculcate this doctrine." * This letter 
marked the lines on which the political parties had 
begun to differ. The Federalists, in general, laid 
stress on the rights of property created by legisla- 
tion and their inviolability as against subsequent 
legislative control, and they sought to protect vested 
rights against fluctuating public sentiment and the 
rapidly changing political condition of the times. 
"The people ought to be made to know that, in cer- 
tain cases, their rights are above the reach of the Leg- 
islature, and thus popularity may be given to a de- 
nial of Legislative power," wrote Isaac Parker, the 
strong Federalist Chief Justice of Massachusetts. 
The Republicans, on the other hand, looked with 
suspicion on a doctrine which restrained the people 
from resuming control of franchises which the people 
themselves had created and granted. Webster had 
paid attention in his argument to this difference of 
political theory, as affecting the doctrine of law to be 
established in this case, and had pointed out the dan- 
ger of attacks upon property rights resulting from 
changes in party control of Legislatures. To guard 
against this, he said, the Federal Convention of 1787 
"very properly . . . added this constitutional bul- 
wark in favor of personal security and private rights", 
and this action, he said, faithfully represented the 
genuine sentiments and undoubted interests of the 
public. "The sober people of America are weary 
of the fluctuating policy which has directed the pub- 
lic councils. They have seen with regret and with 
indignation, that sudden changes and Legislative in- 
terferences in cases affecting personal rights become 
jobs in the hands of enterprising and influential specu- 

1 See The Dartmouth College Causes and the Supreme Court of the United States 
(1879), bv John M. Shirley, letter of Jefferson to Plumer, July 21, 1816, letter of 
Parker to Webster, April 28, 1819. 



486 THE SUPREME COURT 

lators, and snares to the more industrious and less 
informed part of the community." Unless the in- 
violability of charters shall be upheld, he said, "Col- 
leges will become a theatre for the contention of poli- 
tics. Party and faction will be cherished in the places 
consecrated to piety and learning. These conse- 
quences are neither remote nor possible only. They 
are certain and immediate. ... It will be a most 
dangerous experiment to hold these institutions sub- 
ject to the rise and fall of popular parties and the fluc- 
tuations of political opinions." That Marshall had 
anticipated political opposition to the Court's deci- 
sion was shown in the opening words of his opinion. 
"The Court can be insensible neither to the magni- 
tude nor delicacy of this question," he said, but "on 
the Judges of this Court is imposed the high and sol- 
emn duty of protecting, from even Legislative viola- 
tion, those contracts which the Constitution of our 
country has placed beyond Legislative control ; and, 
however irksome the task may be, this is a duty from 
which we dare not shrink." And that Judge Story 
was also impressed with the delicacy of the Court's 
position in setting aside a State law, and that he evi- 
dently anticipated that the judgment of the Court 
was certain to be the object of popular attack, was seen 
from the closing words of his own opinion: "The 
predicament in which this Court stands in relation 
to the Nation at large is full of perplexities and em- 
barrassments. ... It stands ... in the midst of 
jealousies and rivalries of conflicting parties, with 
the most momentous interests confided to its care. 
Under such circumstances, it never can have a mo- 
tive to do more than its duty ; and, I trust, it will 
always be found to possess firmness enough to- do 
that. ... It is not for Judges to listen to the voice 



CORPORATE CHARTERS — BANKRUPTCY 487 

of persuasive eloquence or popular appeal. We have 
nothing to do but to pronounce the law as we find it; 
and having done this, our justification must be left 
to the impartial judgment of our country." 

Such being the conditions under which the case 
was argued, it was highly important that public con- 
fidence in the Court should not be weakened by a de- 
cision based on party lines. Fortunately, in this case, 
as in so many others, the Court showed its high inde- 
pendence ; and its judgment was concurred in by five 
Judges, two of whom were Federalists — Marshall 
and Washington — and three Republicans — John- 
son, Livingston and Story ; Duval, a Republican, 
alone dissented ; and Todd, the other Republican, 
was absent. That a Republican Court should estab- 
lish "principles broad and deep, and which secure cor- 
porations . . . from legislative despotism and party 
violence for the future", as Hopkinson wrote, 1 and 
should form a "defence of vested rights against State 
Courts and Sovereignties", as Webster said, was a 
fact of significant import in the history of the enforce- 
ment of the provisions of the Constitution relative 
to the powers of the States. 2 

In view of the immense effect of this case upon the 
future jurisprudence and the future development 
of corporate interests in this country, it is of interest 
to note that, at the time of its decision, its importance 
was not at all realized. 3 Notwithstanding the fact that 
in the Federalist quarterly, the North American Re- 

1 See letter of Joseph Hopkinson to President Brown, Feb. 2, 1819. 

2 Webster, as quoted in Congressional Reminiscences (1882), by John Wentworth. 

3 The following statement in The Judicial Veto (1914), by Horace A. Davis, 
15, is an interesting example of history written ex cathedra and not after examination 
of contemporaneous papers : " That decision (the Dartmouth College Case) came 
as a thunderbolt to the whole country which had been proceeding on the true 
theory that the States had the same right to alter, amend or repeal a franchise that 
they had to grant it." North Amer. Rev. (Jan., 1820), VIII. 



488 THE SUPREME COURT 

view, it was said, a few years later, that "perhaps 
no judicial proceeding in this country ever involved 
more important consequences or excited a deeper 
interest in the public mind", it is certain that, for the 
public at large, the decision had little immediate sig- 
nificance. Slight notice was taken of it in the pub- 
lic press ; and in Niles Register, the weekly periodical 
published in Baltimore, which usually printed a 
fairly complete summary of all the political and legal 
occurrences of the times, there was no mention what- 
ever of the case, although regarding two other famous 
decisions made at the same Term of Court, — Sturges 
v. Crowninshield and McCulloch v. Maryland — full 
news-accounts and editorial comments appeared in 
its columns. The principal New York newspapers 
contained very slight mention of the decision. 1 The 
Federalist papers of Boston paid somewhat more 
attention. The Columbian CentineVs Washington cor- 
respondent wrote of "the most able and elaborate 
opinion which, perhaps, has ever been pronounced 
in a Court of Judicature, on the far-famed question 
relative to Dartmouth College. It can scarcely be 
necessary to add for the information of the enlightened 
part of the community, and especially of those who 
were able to comprehend the skeleton of the gigantic 
argument of the Hon. Mr. Webster of your place, 
that the decision is in favour of the College or ancient 
Institution. The opinion of the Court goes the whole 
length with the plaintiffs, overthrows every ground 
of defence relied on by the defendants." Another 
letter in the same paper said: 'This question has 
excited a deep and lively interest in the public mind 

1 See New York Evening Post, Feb. 5, 1819; terming the opinion "a most able 
and elaborate production" ; see also New York Gazette, Feb. 6, 1819; New. York 
Commercial Advertiser, Feb. 6, 1819, the latter simply saying : "We understand that 
the opinion of Court as delivered by the Chief Justice is a learned and able paper." 



CORPORATE CHARTERS — BANKRUPTCY 489 

in different parts of the country, and at different times 
seems to have aroused the religious and political feel- 
ings of the people. But we feel assured, from the very 
dispassionate manner in which it has been conducted 
of late, from the very thorough examination which 
it has undergone by some of the ablest lawyers in our 
country, and from the unanimity that exists among 
the Judges of the Court upon the question that it is 
settled strictly upon pure principles of law." The 
Centinel printed an editorial to the effect that " the great 
question is settled in a manner which must give the 
utmost satisfaction to every friend of science and learn- 
ing in the United States." The Boston Daily Ad- 
vertiser printed a letter from its Washington corre- 
spondent describing the opinion and saying: "It is 
one of the most elaborate and able opinions I have 
ever heard. It was drawn up by the Chief Justice, 
and bears marks of a great and vigorous mind, exer- 
cising all its powers in search of truth, and in support 
of a great constitutional principle. . . . Upon this 
result I most sincerely congratulate the good people 
of New England. It is calculated to ensure perma- 
nency to those numerous valuable institutions, so 
honourable to them, against the fluctuation of party 
and the rude attacks of rash innovators." The Re- 
publican papers in Boston contained only a few lines 
regarding the case. 1 The newspapers of New Hamp- 
shire were divided on political lines in their attitude 
towards the decision, the Republican papers gener- 
ally opposing it, and the New Hampshire Gazette, one 
of the leading papers, even going so far as to intimate 
that the case was not properly tried, and saying : 
"Had the case been fairly laid before the Court, no 

1 Columbian Centinel, Feb. 10, 1819; Boston Daily Advertiser, Feb. 8, 1819; 
Boston Patriot, Feb. 9, 1819 ; Independent Chronicle, Feb. 8, 1819. 



490 THE SUPREME COURT 

man, without impeaching their integrity or their 
common sense, can doubt but their decision would 
have confirmed that of the Superior Court in this 
State." Federalist papers, like the Portsmouth Ora- 
cle, how T ever, supported the decision with vigor. In 
the South and West, practically no attention was 
paid to the decision at the time it was rendered, by 
the newspapers, though a leading Republican paper 
of Kentucky said: "We hope our Legislature will 
not hereafter grant any charter whatever, without re- 
serving the right to alter, amend or repeal as the pub- 
lic interest may require." 1 

But while the import of the case was not at once 
perceived by the Bar and the general public, Judge 
Story, with deeper vision, foresaw, as he wrote to Chan- 
cellor Kent, "the vital importance, to the well-being 
of society and the security of private rights, of the 
principles on which that decision rested." "Un- 
less I am very much mistaken," he wrote, "these prin- 
ciples will be found to apply, with an extensive reach, 
to all the great concerns of the people, and will check 
any undue encroachments upon civil rights, which 
the passions or the popular doctrines of the day may 
stimulate our State Legislatures to adopt." 2 No 
other public man, however, seemed then to comprehend 
the fact that this clause of the Constitution which 
forbade a State to impair the obligation of contracts 

1 Argus of Western America, Feb. 26, 1819. Two years later, however, the 
Washington Federalist (then a Republican paper) said, March 12, 1821 : "Whilst 
perusing the strange arguments of the Supreme Court in the case of Dartmouth 
College, we involuntarily thanked our stars that the Revolution had been effected 
before the birth of this august tribunal, else error had been canonized and frailty 
or incongruity made perpetual, under color of enforcing contracts and immortaliz- 
ing an useless charter. In all this we only see human nature, as it has always 
been seen, prone to assume power by all the ingenuity it can exercise. Conse- 
quently, we have not the most distant idea, nor had we ever any intention, of 
ascribing corrupt motives to the Supreme Court. But the effect of error is often 
worse than that of crime itself." 

2 Story, I, 330, letter to Kent, Aug. 21, 1819. 



CORPORATE CHARTERS — BANKRUPTCY 491 

would, for the next fifty years, have the most profound 
effect, and would produce the most litigation of any 
portion of that instrument; or that, as Sir Henry 
Maine has said, it would prove to be "the bulwark 
of American individualism against democratic im- 
patience and socialistic fantasy." 1 

Unquestionably, the decision came at a peculiarly 
opportune period ; for business corporations were 
for the first time becoming a factor in the commerce 
of the country, and railroad and insurance corpora- 
tions were, within the next fifteen years, about to 
become a prominent field for capital. The assurance 
to investors that rights granted by State Legislatures 
were henceforth to be secure against popular or partisan 
vacillation, and capricious, political or fraudulent 
change of legislative policy, greatly encouraged the 
development of corporate business. 2 While, how- 
ever, the doctrine of this case gave protection and 
security to the holder of corporate stock, and thus 
acted as a powerful factor in the development of the 
country by investors, it resulted frequently in a seri- 
ous impairment of the rights of the public ; and though 
it prevented a corrupt, radical or partisan Legisla- 
ture from repealing acts of a former honest and wise 
predecessor, it equally prevented an honest and wise 

1 Popular Government (1885), by Sir Henry Maine, 247-248. 

2 The first corporation chartered in the United States after the Revolution was 
only thirty-nine years before 1819, the Bank of North America in 1780, in Pennsyl- 
vania. Prior to 1800, there had been only eight manufacturing corporations 
chartered in the whole country, and these in five States : in Massachusetts three ; 
in New York, two ; and in Connecticut, Kentucky and New Jersey, each one. Up 
to 1800, there had been only 213 corporations of all kinds, including banks, bridges, 
turnpikes, aqueducts and canals. Turnpike, canal and banking companies consti- 
tuted the chief corporations in existence ; and banks had started up in great num- 
bers only since the expiration of the charter of the first United States Bank in 
1811. It was only since the close of the War in 1815, and the passage of the Tariff 
Act of 1816, that manufacturing corporations had begun to develop to any extent, 
and these corporations were almost wholly chartered by special acts, New York 
alone having enacted (in 1811) a general business corporation statute. 



492 THE SUPREME COURT 

Legislature from repealing the act of a former corrupt 
or unwise predecessor. 1 Two important modifica- 
tions, however, made later by judicial interpretation, 
relieved the public from the rigid bonds originally 
placed upon its future action ; the first of these re- 
laxations being, that no charter should be construed 
to grant rights against the public by implication ; 
the second, that no Legislature could defeat the right 
of a subsequent Legislature to alter or repeal a cor- 
porate charter, when such action was necessary un- 
der the police power of the State. It was nearly 
twenty years after the decision of the Dartmouth College 
Case before the first modification was made; and 
over fifty years, before the second. Many attempts 
have been made, beginning in 1854, to induce the 
Court to introduce a third modification, so as to re- 
strict the right of a Legislature to bind its succes- 
sors by a grant of tax exemption in a corporate char- 
ter ; but the Court has never yielded on this point. 

That so important a decision as the Dartmouth Col- 
lege Case aroused so little public interest at the time it 
was rendered was due largely to the fact that, within 
two weeks, another decision was handed down by the 
Court, which, though of less vital effect upon the con- 
stitutional history of the country, had an enormous 
influence upon the course of commercial conditions. 
This was the case of Sturges v. Crowninshield, 4 Wheat. 

1 Status and Tendencies of the Dartmouth College Case, by Alfred Russell, Amer. 
Law Rev. (1896), XXX; Cole, J., in Dubuque v. Railroad, 39 Iowa, 95, said : "The 
practical effect of the Dartmouth College decision is to exalt the rights of the 
few above those of the many. And it is doubtless true that under the authority 
of that decision, more monopolies have been created and perpetuated, and more 
wrongs and outrages upon the people effected, than by any other single instrumen- 
tality in the government." See also Constitutional Limitations (1868), by Thomas 
M. Cooley, 279-280 note ; and for history of attempts by States to escape from 
the operation of the decision; see The Limitations of the Power of a State-Over a 
Reserved Right to Amend or Repeal Charters of Incorporation, by Horace Stern, 
Amer. Law Reg. (1905), LIII; Looker v. Maynard (1900), 179 U. S. 46. 



CORPORATE CHARTERS — BANKRUPTCY 493 

122, in which the constitutionality of State insolvent 
laws (and of the New York law in particular) was in- 
volved. The financial condition of the country at this 
time was exceedingly precarious. As Congress had 
enacted no National Bankruptcy Law, a decision of the 
Court holding that the States possessed no power over 
bankruptcy under the Constitution would be highly dis- 
astrous to commercial interests. Only five years before, 
Judge Washington sitting in the Circuit Court had 
held in 1814 that the exclusive power resided in Con- 
gress ; while, on the other hand, Judge Johnson and 
Judge Livingston in the Circuit Courts in 1817 had 
held the contrary, the latter stating that "few questions 
have been agitated in any Court of the United States 
since the formation of the Federal Government of more 
consequence or of more delicacy." The State Courts 
had uniformly upheld the State laws. 1 

The very able arguments in the Sturges Case were 
made, just a week after the decision of the Dartmouth 
College Case, on February 8 and 9, 1819. "Certainly 
there never was a question discussed in a Court of 
Justice where the Court had the benefit of more labo- 
rious pleadings, evidently the result of laborious re- 
search," wrote a Washington correspondent. 2 Against 
the State laws, there appeared David Daggett of 
Connecticut, who opened " in a clear and perspicuous 
manner", and Joseph Hopkinson, who closed "with his 
usual acumen and ingenuity." On the other side were 
William Hunter of Rhode Island, who gave "a very 
learned view of the history of bankrupt laws and a 
subtle examination of the constitutional terms", and 
David B. Ogden of New York, whose " strong, logical 

1 Golden v. Prince, 3 Wash. C. C. 315 ; Adams v. Storey, 1 Paine, 79 ; Farmers 
& Mechanics Bank v. Smith (1817), Hall's Amer. Law Journal, VI ; Hannay v. Jacobs, 
Circ. Ct. So. Car.; Blanchard v. Russell (1816), 17 Mass. 1. 

2 New York Evening Post, March 8, 1819. 



494 THE SUPREME COURT 

powers, great learning would have saved the cause, if 
any ability could have saved it." The case was decided, 
February 17, eight days after the argument; and as 
Judge Johnson said later in Ogden v. Saunders, the 
Court "was greatly divided in their views of the doc- 
trine, and the judgment partakes as much of a com- 
promise as of a legal adjudication." The opinion, 
rendered by Marshall, confined itself to holding that 
the New York bankruptcy law in question was invalid 
as impairing the obligation of contract, in so far as it 
attempted to discharge a contract or debt entered into 
prior to the passage of the law. Owing to the some- 
what indefinite phraseology of the opinion, a very gen- 
eral misunderstanding spread throughout the country ; 
and it was understood both by business men and by the 
Bar that the Court had decided that the State had no 
power to pass any form of bankrupt or insolvent law. 
Many of the newspapers of the country published the 
statement that the Court had decided that a State 
might, by law, release the body of a debtor, but could 
not cancel or discharge the debt. 1 The decision, so 
construed, "took the States and the profession by sur- 
prise." 2 "This opinion has given much alarm to many 
persons ; it is highly interesting to everyone," said 
Niles Register. "It will probably make some great 
revolutions in property, and raise up many from penury 
whose ' eyes have been blinded by the dirt of the coach 
wheels of those who ruined them', and cause others 
to descend to the condition that becomes honest men, 
by compelling a payment of their debts. The decision 
powerfully shows the necessity of a general bankrupt 

1 See for instance New Brunswick (N. J.) Fredonian, Feb. 25, 1819. 

2 Reverdy Johnson, arguing in Cook v. Moffat, 6 Mow. 345, in 1848; Niles Regis- 
ter, Feb. 27, 1819; New York Evening Post, Feb. 20, 23, 1819; Baltimore Federal 
Republican, cited in Independent Chronicle (Boston), March 6, 1819; Columbian 
Centinel (Boston), March 6, 1819; Augusta Chronicle and Georgia Gazette, IVfarch 
31, 1819. See also Connecticut Courant, March 23, 1819. 



CORPORATE CHARTERS — BANKRUPTCY 495 

law." A leading New York paper said that it "causes a 
very considerable sensation in the city and we do not 
wonder at it. . . . We advise to the suspension of all 
opinions until the decision itself reaches us." Later it 
said that the decision "has excited a very extensive 
alarm in the community. It is possible that the excite- 
ment now prevalent among the public may be more 
than commensurable to the cause. No tolerably 
accurate statement of the opinion of the Court has 
yet reached this city. The public impression is that 
discharges under the State laws have been declared 
void in all cases. ... It is possible that the decision 
does not go to that extent. The only prudent course 
is to await the result in patience." A Baltimore paper 
said : "Nothing but the publication of the entire opin- 
ion can possibly allay the fermentation that is excited ; 
all ministers of justice are on the alert; writs cannot 
be made out fast enough ; attachments are crowding 
themselves into the secret and confidential transactions 
of everybody, and must be put a stop to in some way 
or other, or the hearts and arms of many of our best 
citizens will be paralyzed." A Boston paper said : 
"The late decision has created much excitement and 
alarm in many States. Persons, we learn, who have 
been discharged many years from contracts by the 
laws of their States, and have since acquired property, 
have had it attached to pay their old debts." A 
Georgia paper said that : "Much uneasiness has arisen 
in many parts of the country from this opinion. . . . 
Under the decision of the Supreme Tribunal of the 
country, what are wretched debtors to do? The 
States can exempt nothing but their bodies from the 
harassing pursuit of the law ; the Congress, in making 
a bankrupt law, will include only the trading class in 
their act. There must, nevertheless, be power some- 



496 THE SUPREME COURT 

where to free debtors from the load of obligations 
under which they may labor. If the power is not in 
the States, it must be in the United States ... or does 
the Supreme Court mean by its opinion that neither 
the States nor Congress can free anything but the body 
of a mere insolvent, who is no trader, from liability to 
compulsory process? We hope the decision of the 
Court may not involve an inconsistency." Twelve 
days after the decision, a correct summary was finally 
published in New York on March 1, 1819, and it was 
then seen that the fears of the business community had 
been exaggerated, since the insolvent laws were only 
held invalid so far as they discharged prior existing 
debts. A calmer view of the situation was presented 
by a Washington correspondent, March 4, stating that 
while the decision was "no doubt to be lamented in 
regard to the temporary evils it must inflict, . . . cer- 
tainly every intelligent and reflecting man must have 
anticipated the possibility of such a decision being 
ultimately pronounced by the highest tribunal of the 
country; and I know that many of the lawyers in it 
have confidently expected this would be the result. 
But whatever difference of opinion there may have 
existed on this subject, among professional men and 
among Judges, all will no doubt cheerfully acquiesce 
in a decision pronounced by the highest Court in the 
land, which is empowered to determine finally all ques- 
tions arising under the Constitution of the United 
States which is the supreme law of the land." Another 
New York paper, however, said : "An extreme anxiety 
with regard to the effect of that decision has been excited 
not only here but in various other parts of the country. 
And it must be considered to be not a little extraor- 
dinary that, at the end of several weeks, the opinion of 
the Court has not been published. The truth is, no 



CORPORATE CHARTERS — BANKRUPTCY 497 

decision has ever been made by that tribunal which 
came more immediately home to the business and feel- 
ings of the community, than such a one as this is sup- 
posed to be." * 

The serious effect of the decision upon the business 
community was heightened by the fact that the coun- 
try was passing through a period of financial disaster. 
The inflation by State bank currency and the land 
speculations in the South and West, the mismanage- 
ment and frauds in the Bank of the United States, the 
flooding of the markets with English goods after the 
close of the War of 1812, all had produced a general 
unsettlement of business, and many failures. Debtors 
in large numbers had taken advantage of State insol- 
vent laws to obtain discharge of their debts. Now, the 
express decision in the Sturges Case, coupled with the 
uncertainty as to how far the Court might go in future 
cases, seemed to make manifest the imperative ne- 
cessity for the passage of a National Bankruptcy Act. 
"The decision in the Sturges Case renders the passing 
of a National law imperious," said the Baltimore Pa- 
triot. "In every commercial community, such a law 
is necessary. The apathy that prevails in Congress 
on the subject is really surprising. How long will 
they shut their ears against the cries of distress ? How 
long will they neglect supplication of thousands?" 
"Arguments and reasons sufficiently cogent were before 
advanced, but the highest legal tribunal of our country 
has added to these incentives, by its late determinations, 
a volume of arguments." 2 Since Congress, however, 

1 New York Evening Post, March 1, 8, 1819 ; New York Daily Advertiser, March 
10, 1819; Southern Patriot (Charleston, S. C), March 18, 1819. 

2 Baltimore Patriot, Feb. 24, March 13, 1819: Niles Register, Feb. 27, 1819. 
Daniel Webster, writing to Jeremiah Mason, Feb. 15, 1819, two days before 
the opinion was rendered in the Sturges Case had said: "Nothing has yet been 
done with the Bankruptcy (Bill) and it seems too late to do anything. The ques- 
tion is before the Court whether the State Bankruptcy Laws are valid. The general 



498 THE SUPREME COURT 

failed to enact any bankruptcy legislation, and since 
the business world, as well as the Bar, was still left 
in doubt whether the Court would ultimately decide 
against the constitutionality of a State insolvent law 
applying to contracts made or debts incurred after its 
enactment, the whole country waited anxiously for 
some case to be brought before the Court which should 
involve that issue. 

opinion is that the six Judges now here will be equally divided on the point. I con- 
fess, however, I have a strong suspicion there will be an opinion, and that that 
opinion will be against the State laws. If there were time remaining, the deci- 
sion, should it happen, might help through the Bill. The question between 
Maryland and the Bank is to be argued this day week. I have no doubt of the 
result. Wirt and Pinkney still talk of arguing one of the College causes. On 
our side, we smile at this, not being able to suppose them serious. ... I should 
have no fear of the result. I am anxious to know how the decision is received in 
New England. Our New Hampshire members behaved very well on the subject 
of the Judges' salaries, notwithstanding this decision. Mr. Swan made a speech, 
and, it is said, a very good one, in their favor. Holmes opposed them with great 
violence." Webster, XVI. 

When the bankruptcy bill failed to pass the House of Representatives in 1822, 
the New York Statesman said, March 15, 1822: "Thus perishes the hopes of thou- 
sands of honest, industrious, enterprising and virtuous citizens, who have borne 
for years the deprivations and hardships of severe adversity." 



CHAPTER TWELVE 

THE BANK OF THE UNITED STATES 

1819-1821 

Within three weeks after the decision in the Dartmouth 
College Case in 1819, and within five days after that 
in the Sturges Case, arguments were begun in the third 
great case of the Term, McCulloch v. Maryland. Only 
two weeks later, the opinion was rendered which was 
destined to become a fundament of American con- 
stitutional law, but which at the time of its delivery 
made the Court a storm center of criticism. 

From the beginning of the framing of the Constitution, 
the line of cleavage of the political parties had been 
based on their divergence of view as to the limits of 
Federal as compared with State powers. At the out- 
set of the Federal Convention, Edmund Randolph had 
submitted a resolution, which was agreed to by the 
Committee of the Whole, "that the National Legislature 
ought to be empowered to enjoy the Legislative rights 
vested in Congress by the Confederation, and moreover 
to legislate in all cases to which the separate States are 
incompetent, or in which the harmony of the United 
States may be interrupted by the exercise of individual 
legislation." Pinckney's draft advocated specific powers 
for Congress, and a general clause, "to make all laws 
for carrying the foregoing powers into execution." l 

1 Documentary History of the Constitution (1900), I, 262, 316. Alexander Hamil- 
ton's plan had been for a Legislature "with power to pass all laws which they 
shall judge necessary to the common defence and general welfare of the Union." 
Ibid., I, 327, II, 783. Pelatiah Webster, in his Dissertation in 1783, had previously 
suggested that the powers of Congress "shall be restricted to such matters only 



500 THE SUPREME COURT 

While the fears of the opponents of a consolidated 
form of government had been somewhat allayed by the 
adoption of the Constitution in its final form, specifically 
and expressly delegating the powers of Congress in 
definite terms, there still remained a grave anxiety over 
the indeterminate language contained in that clause 
which vested Congress with power "to make all laws 
which shall be necessary and proper for carrying into exe- 
cution the foregoing Powers, and all other Powers vested 
by the Constitution in the Government of the United 
States, or in any Department or Officer thereof." ! 
Though this clause had occasioned no debate in the Fed- 
eral Convention, 2 it was received with much misgiving in 
the various State conventions, and predictions were rife 
that it would be used as a weapon against the sovereignty 
of the States. With the initiation of the new Govern- 
ment in 1789, the broad or narrow interpretation of 
this clause marked a line of division between schools 
of political thought and action ; and it has been truly 
said that "the history of the United States is in a large 
measure a history of the arguments which sought to 
enlarge or restrict its import." 3 As early as 1791, 
those who feared lest the powers of the Federal Gov- 
ernment should be expanded, at the expense of the 
States, by legislative practice or by judicial inter- 
pretation, saw their fears confirmed, when Congress, 
without any express power vested by the Constitution, 

of general necessity and utility to all the States, as cannot come within the juris- 
diction of any particular State, or to which the authority of any particular State is 
not competent, so that each particular State shall enjoy all sovereignty and supreme 
authority to all intents and purposes, excepting only those high authorities and 
powers by them delegated to Congress, for the purposes of the general Union. . . . 

1 Constitution, Article I, Section 8, paragraph 18. 

2 It was reported by Mr. Rutledge for the Committee of Detail, Aug. 6, adopted 
in Convention, Aug. 20, and reported in its final form by the Committee on Style 
and Arrangement, Sept. 12, 1787. See Documentary History of the Constitution 
(1900), III. 

3 The American Commonwealth (1888), by James Bryce, I, 370. 



THE BANK OF THE UNITED STATES 501 

chartered a National bank. A few years later, their 
anxiety at the growth of Federal authority increased, 
when the Alien and Sedition Laws were upheld by the 
Courts under this "necessary and proper" clause. 
In 1800, a project to grant a Federal charter to a busi- 
ness corporation (though defeated) still further alarmed 
the strict constructionists ; and Jefferson wrote to 
Edward Livingston : "The H. of R. sent us yesterday 
a bill for incorporating a company to work Roosevelt's 
copper mines in New Jersey. I do not know whether 
it is understood that the Legislature of Jersey was 
incompetent to this, or merely that we have concurrent 
legislation under the sweeping clause. Congress are 
authorized to defend the nation. Ships are necessary 
for defence ; copper is necessary for ships ; mines, 
necessary for copper; a company necessary to work 
the mines ; and who can doubt this reasoning who 
has ever played at 'This is the House that Jack 
Built ' ? Under such a process of filiation of neces- 
sities the sweeping clause makes clean work." * 

In 1805, the Court for the first time expressed its 
views of the nature of the interpretation to be given 
to the "necessary and proper" clause of the Consti- 
tution, when Marshall stated in United States v. Fisher, 
% Cranch, 358, that: "In construing this clause, it 
would be incorrect and would produce endless difficul- 
ties, if the opinion should be maintained, that no law 
was authorized which was not indispensably neces- 
sary to give effect to a specified power. . . . Congress 
must possess the choice of means, and must be empow- 
ered to use any means which are in fact conducive to 

1 Jefferson, IX, letter of April 30, 1800. See Southern History Ass. Pub. (1905), 
104, letter of Hugh Williamson to McHenry, April 29, 1800, as to this project for 
the Government to finance a copper mine and to subscribe $50,000: "The bill is 
smothered in the North. Certainly, it is to be desired that companies were formed 
and copper mines were diligently wrought; but if Government ever become 
partners, they will infallibly be the milch cow." 



502 THE SUPREME COURT 

the exercise of a power granted by the Constitution." 
As a result of the announcement of the Court's liberal 
doctrine of constitutional construction, an Amendment 
of the Constitution was urged in 1806 by a Virginia 
Congressman, to define laws "necessary and proper" 
as comprehending, "only such laws as shall have a 
rational connection with and immediate relation to 
the powers enumerated" ; and his argument was based 
on the supposed fact that the Court had held that 
Congress had a right to make any law which it should 
determine to be expedient for carrying into execution 
the powers enumerated. "All these acts of Federal 
usurpation," he said, "while they are drawing into its 
vortex this great accession of power, are weaving 
around the State institutions the web of destruction." * 
In 1811, 1814 and 1816, the debates on the incorpo- 
ration of the Bank of the United States developed the 
line of cleavage on this primary constitutional issue. 
"Little did the framers of the Constitution imagine," 
said the strict constructionists, " that there lay con- 
cealed under its provision a secret and sleeping power 
which could in a moment prostrate all their labors 
with the dust. . . . Let the principle of constructive 
or implied powers be once established, and you will 
have planted in the bosom of the Constitution a viper 
which, one day or another, will sting the liberties of 
this country to the heart." It is a "monstrous", 
"alarming" doctrine, converting us into "one entire 
consolidated Government of general, undefined 
powers." 2 The debates on the subject of internal 
improvements, during the years 1816 to 1818, also gave 

1 9th Cong., 2d Sess., speech of Clopton in the House, Dec. 11, 1806; see also 
speech of Clopton on the Bank of the United States bill in the House, Dec. 23, 
1814, 13th Cong., 2d Sess. 

2 11th Cong., 3d Sess., Jan. 18, 1811, speech of P. B. Porter of Connecticut; ltfh 
Cong., 2d Sess., debate in the Senate, Feb. 26, 1817, on the bill for internal im- 
provements, and later on President Madison's veto message of March 3, 1817. 



THE BANK OF THE UNITED STATES 503 

rise to a discussion of constitutional doctrines, becom- 
ing more and more heated as time progressed. 1 The 
doctrine of implied powers, said the statesmen from the 
South, is "odious", "dangerous", "consolidative", 
"sweeping off some of the few remaining attributes of 
sovereignty from the States." On the other hand, 
those who upheld the maintenance of an adequately 
strong Federal Government joined with Henry Clay 
in eloquent defense and protest against "construing 
the Constitution as one would a bill of indictment . . . 
reducing it to an inanimate skeleton," its "atrophy" 
by "water gruel regimen." 

It was at a time, therefore, when the contest between 
adherents of a broad and of a narrow construction had 
become a fixed phase of American politics, and had 
sharply divided the American people on party and 
sectional lines, that the Court, in 1819, was confronted 
with a case involving the question in its fullest scope. 
It was highly unfortunate that the decision of a point 
of constitutional law of so vital importance should 
have become necessary, in connection with a subject 
on which the American people were even more excitedly 
divided — namely the existence of the Bank of the 
United States. Had the legal question been presented 
in a case involving a topic less obnoxious than the 
Bank, unquestionably the doctrines which the Court 
enounced in McCulloch v. Maryland would have aroused 
far less antagonism. There was, in reality, nothing new 
in Marshall's opinion in that case, nothing which had 
not already been repeatedly said in Congressional 
debates, nothing, indeed, which Marshall had not 
already expressly stated in the Fisher Case, fourteen 
years before. But while little popular excitement had 
followed the judicial expression of Marshall's broad 

1 15th Cong., 1st Sess., March 6-14, 1818. 



504 THE SUPREME COURT 

constitutional views in 1805, since they were stated in 
a case presenting a topic of mild interest, their an- 
nouncement now in 1819 was greeted with an outburst 
of indignation and even of actual defiance. 1 And this 
was due, not so much to the particular constitutional 
doctrines established, as to the fact that the decision 
gave life to a hated banking corporation. To grasp the 
effect of the decision upon contemporaneous history, 
the status of the Bank of the United States at that time 
must be borne in mind. When first chartered in 1791, 
it had been opposed by the Anti-Federalists of Mary- 
land, Virginia and the Carolinas. At the expiration 
of its charter in 1811, in spite of its proven service to 
the Government and to the business public through 
times of severe financial stress, it had become an object 
of general odium, due partly to the fact that it was 
under almost complete control of the Federalists (who, 
it was believed, used it as a political machine), partly 
to the fact that its stock was largely held by British and 
other foreigners, and partly to the extreme jealousy of 
the State banks. 2 But in spite of these antagonistic 

1 "Parties in America, as in most countries, have followed their temporary inter- 
est ; and if that interest happened to differ from some traditional party doctrine, 
they have explained the latter away. Whenever there has been a serious party 
conflict, it has been in reality a conflict over some living and practical issue, and 
only in form a debate upon canons of legal interpretation. . . . Men did not 
attack or defend a proposal because they held it legally unsound or sound on the 
true construction of the Constitution, but alleged it to be constitutionally wrong 
or right because they thought the welfare of the country, or at least their party 
interests, to be involved. Constitutional interpretation was a pretext, rather than 
a cause, a matter of form rather than of substance." The American Common- 
wealth (1888), by James Bryce, I, 379. 

2 Timothy Pickering, writing to Judge Richard Peters, Jan. 30, 1811, said: 
"You will not be surprised if I should trace this opposition to the Bank to the 
'origin of our (political) evil' — the philosopher of Monticello. He and Randolph 
perplexed the President with their plausible objections, which, at the last moment, 
were overthrown by Hamilton. Jefferson has never forgotten the signal defeat. 
Envy and hatred of his rival have ever since rankled in his bosom ; and if he can 
now destroy the Bank, he will feel the final victory to be his own. There are other 
motives to influence him in this case. Of American stockholders, the greater part 
by far are Federalists; and of foreigners, the chief are Englishmen." Peters Papers 
MSS. See also The Second Bank of the United States (1900), by Ralph C. H. Cot- 
terall ; Financial History of the United States (1879), by Albert S. Bolles. 



THE BANK OF THE UNITED STATES 505 

factors, the necessity for its reestablishment became 
increasingly apparent, by reason of the unsettlement of 
business by the War of 1812, and the overissue of bank 
paper and suspension of specie payments by the State 
banks. Accordingly, amidst hot political opposition, 
the second Bank of the United States was incorporated 
in 1816. Within two years, however, by reason of bad 
management and mistaken policies, which first en- 
couraged over-expansion of credits and later drastically 
curtailed them, thereby ruining many State banks, the 
Bank had brought upon itself the intense hatred of the 
whole South and West. The disastrous effect of its 
banking policies was enhanced by the fact that the busi- 
ness of the country was already in a serious condition, 
owing to the flood of cheap imports following the close 
of the war, the overdevelopment of manufacturing 
caused by the tariff of 1816 and the general extrava- 
gance. As a result, when a terrible financial stringency 
and business distress ensued, and practically all the 
State banks in Kentucky, Ohio, Western Pennsylvania 
and North and South Carolina stopped payment, the 
general public placed the responsibility on that "mon- 
ster", the Bank of the United States. Radical legis- 
lation was at once enacted by its opponents. Indiana 
in its Constitution of 1816 prohibited the establishment 
of branches of any bank chartered outside the State. 
The Illinois Constitution of 1818 prohibited the exist- 
ence of any but State banks within the State. In 
November, 1817, Tennessee imposed a tax of $50,000 
on any other than a State bank doing business in the 
State ; in December, 1817, Georgia laid a tax of 31^% on 
every $100 of bank stock employed within the State 
(the Legislature declaring by resolve, the next year, that 
this tax was only intended to apply to branches of the 
Bank of the United States) ; North Carolina, in Decern- 



506 THE SUPREME COURT 

ber, 1818, imposed an annual tax of $5000 on the 
branches of the Bank. In February, 1818, there was 
enacted in Maryland a statute laying a heavy stamp 
tax on all notes issued by banks chartered outside the 
State, which tax might be commuted by the annual 
payment of $15,000; in January, 1819, Kentucky 
imposed a still heavier tax, compelling each branch in 
that State to pay $60,000 annually ; the next month, 
February, 1819, Ohio rivaled Kentucky with a tax of 
$50,000 on each branch. 

Meanwhile, reckless mismanagement, wild specula- 
tion in its shares, and fraudulent and unwarranted 
overloans made by bank officials to themselves and 
others in the Pennsylvania, Maryland and Virginia 
branches, had brought the Bank to the verge of insol- 
vency. By defalcations and other frauds, in the Mary- 
land branch alone, there had been a loss of $1,700,000. 
It was amidst such untoward conditions that the 
case of McCulloch v. Maryland, 4 Wheat. 316, involving 
the right of the State of Maryland to tax this Federal 
banking institution, came before the Court, in February, 
1819. This case was an action of debt by one John 
James, suing as an informer in behalf of himself and 
of the State, to recover a penalty of $100 from James 
W. McCulloch, the cashier of the Bank, for circu- 
lating a banknote unstamped, in violation of the 
Maryland taxing statute. It had been brought, May 
8, 1818, in the County Court of Baltimore County, 
and, after decision in favor of the State, had been 
immediately appealed to the Maryland Court of 
Appeals on an agreed statement of fact, the Attorney- 
General of Maryland, Luther Martin, and the United 
States officials cooperating to make it a test case. 
Decision being rendered, in June, 1818, in favor of 
the constitutionality of the Maryland tax law, a writ 



THE BANK OF THE UNITED STATES 507 

of error was at once taken to the United States Supreme 
Court, where it was docketed on September 18, 1818. 
Six of the greatest lawyers in the country were re- 
tained for its argument — William Pinkney, Daniel 
Webster and United States Attorney-General William 
Wirt, in behalf of the Bank, and Luther Martin, Jo- 
seph Hopkinson of Philadelphia, and Walter Jones 
of Washington, for the State. Beginning on February 
22, 1819, the argument proceeded for nine days as 
follows : Webster opened for the Bank and Hopkinson 
for the State ; Hopkinson spoke all day, February 
23 ; on February 24, Wirt argued for the Bank and 
Jones for the State ; on February 25, Jones finished 
his argument, and Martin began his long argument 
which lasted through Friday and Saturday, February 
26 and 27. Of Martin's effort, Judge Story later 
narrated that he ended by saying that he had one 
last authority which he thought the Court would ad- 
mit to be conclusive, and he then read from the reports 
of Marshall's own speeches in the debates in the Vir- 
ginia convention when the adoption of the Constitution 
was discussed, whereupon, said Story, Marshall drew 
a long breath, with a sort of sigh. After the Court 
adjourned, he rallied the Chief Justice on his uneasi- 
ness, and asked him why he sighed : to which Mar- 
shall replied, " Why, to tell you the truth, I was afraid 
I had said some foolish things in the debate; but it 
was not so bad as I expected." * On Monday, March 
1, Pinkney began the argument which was to prove 
the greatest effort of his life, consuming three full 
days, ending on March 3, and described by Judge 
Story in a letter written on the last day: "I never, 
in my whole life, heard a greater speech ; it was worth 

1 Life of Alexander H. Stephens (1883), by Richard M. Johnson and William 
Hand Browne, 183. Stephens by mistake stated that the counsel was Chapman 
Johnson of Maryland, instead of Luther Martin. 



508 THE SUPREME COURT 

a journey from Salem to hear it; his elocution was 
excessively vehement, but his eloquence was over- 
whelming. His language, his style, his figures, his 
arguments were most brilliant and sparkling. He 
spoke like a great statesman and patriot, and a sound 
constitutional lawyer. All the cobwebs of sophistry 
and metaphysics about State rights and State sover- 
eignty he brushed away with a mighty besom. We have 
had a crowded audience of ladies and gentlemen ; the 
hall was full almost to suffocation." l The importance 
of the questions at issue was fully realized at the time, 
as shown by the account given in the National Intelligen- 
cer, which said that : "The argument has involved some 
of the most important principles of constitutional law 
which have been discussed with an equal degree of learn- 
ing and eloquence and have constantly attracted the 
attention of a numerous and intelligent auditory, 
by whom the final decision of this most important 
question from the Supreme Tribunal of the country 
is anxiously expected." And Niles- Register also said: 
"The discussion has been very able and eloquent, 
it involves some of the most important principles of 
constitutional law and the decision is anxiously ex- 
pected." 2 

Though the Court was then composed of only two 

1 Story, I, letter of March 3, 1819 ; National Intelligencer, Feb. 25, 1819. 

2 Of Pinkney's argument, a correspondent of the Baltimore Patriot wrote: "I 
had anticipated much from this distinguished man, but he far surpassed my utmost 
expectations. His speech, or rather his series of speeches, were the finest speci- 
mens of Bar oratory I have heard since I have been in the United States. The 
memory, the fancy and the judgment were combined to pour on this important 
question a flood of light. . . . He has spoken con amore of the constitutional 
government of the republican empire, and its high attributes. He has convinced 
his hearers that it cannot be practically enforced so as to secure the permanent 
glory, safety and felicity of this great country but by a fair and liberal interpreta- 
tion of its powers, that these powers could not be expressed in the Constitutional 
charter; many of them must be taken by implication; and that the sovereign 
powers of the Union are supreme." Quoted in Kentucky Gazette, March 26, 1819, 
and Knoxville Register, March 30, 1819. See also National Intelligencer, Feb. 25, 
1819 ; Niks Register, Feb. 27, 1819. 




WILLIAM PINKNEY 



THE BANK OF THE UNITED STATES 509 

Federalists (Marshall and Washington) and of five 
Republicans (Johnson, Livingston, Todd, Duval and 
Story), there seems to have been little doubt expressed 
at the time as to the probability of a decision adverse 
to the State. "I have no doubt of the result,'' wrote 
Webster to Jeremiah Mason before his argument ; and 
"of the decision I have no doubt," he wrote again, 
after his argument. 1 On the floor of Congress, as early 
as February 24, it was stated that there was reason 
to believe that the Court would "determine that the 
United States Bank has a right to extend her branches 
over every individual State in the Union, and the States 
have no right to prune them." Partly because of this 
belief as to the approaching judicial decision, there 
ensued in the House of Representatives, during the very 
days of the argument in Court, a heated debate over 
a bill to repeal the Bank's charter. Through this de- 
bate, the Dartmouth College decision, rendered only 
three weeks before, was curiously interwoven with 
the McCulloch Case ; for some of the Bank's supporters 
denied the power of Congress to repeal, relying largely 
on this decision, but overlooking the fact that the 
prohibition in the Constitution against impairing the 
obligation of contracts was directed only against 
State action. Congress has no power to repeal, argued 
Louis McLane of Delaware. "The charter is a con- 
tract under decision of our own Courts." "Chartered 
rights are sacred things. . . . Violation of charters 
has ever been deemed an enormous grievance," argued 
John Sergeant of Pennsylvania. "If a Legislature as- 
sumes the power of annulling contracts, it loses the 
privilege of making them," said William Lowndes of 
South Carolina. On the other hand, James Pindall of 
Virginia pointed out that the Constitution forbade the 

1 Mason, letter of Feb. 15, 23, 1819; Webster, XVI. 



510 THE SUPREME COURT 

States only, and not Congress, to repeal charters; 
that Congress had full power, subject only to its exercise 
under "precepts of justice and morality." 1 Had 
Congress passed this repealing act, as the Bank's 
opponents were urging, the McCulloch Case would, 
in all probability, have never been decided by the 
Court, as it would have become a moot matter. Con- 
gress, however, failed to act ; and on Saturday, March 
6, 1819, only three days after the close of Pinkney's 
argument, Marshall rendered the unanimous judg- 
ment of the Court, upholding the power of Congress 
to charter the Bank as a Federal agency, sustaining 
the exclusive right of Congress to control such Fed- 
eral agency, denying the right of the State to interfere 
with the Federal Government by taxing such an 
agency, and holding the State tax law invalid. The 
Constitution, he said, did not profess to enumerate the 
means by which the powers it granted may be executed. 
It left with Congress a choice of any means "calculated 
to produce the end" ; and in ever immortal words, the 
Chief Justice summed up: "Let the end be legiti- 
mate, let it be within the scope of the Constitution, 
and all means which are appropriate, which are plainly 
adapted to that end, which are not prohibited, but 
consist with the letter and spirit of the Constitution, 
are constitutional." That a bank "is a convenient, 
a useful and essential instrument in the prosecution 
of the Government's fiscal operations," was, he said, 
not a subject of controversy. Being an appropriate 
measure, the degree of its necessity was solely for 
the consideration of Congress. As to the question of 
the right of the State to tax the operations of such 
a Federal instrument, the Chief Justice, at the outset 
of his opinion, had shown his appreciation of the jdeli- 

1 16th Cong., U Sess., Feb. 18, 22, 23, 24, 1819. 



THE BANK OF THE UNITED STATES 511 

cacy of the situation, involving the conflicting powers 
of the Government and of the States. "No tribunal 
can approach such a question," he said, "without a 
deep sense of its importance, and of the awful re- 
sponsibility involved in its decision. But it must be 
decided peacefully, or remain a source of hostile legis- 
lation, perhaps of hostility of a still more serious 
nature ; and if it is to be so decided, by this tribunal 
alone can the decision be made." And after full 
consideration of the rights and sovereignty of the 
States, he announced the conclusion that the question 
was one of supremacy, "and if the right of the States 
to tax the means employed by the General Govern- 
ment be conceded, that declaration that the Constitu- 
tion and the laws made in pursuance thereof, shall be 
the Supreme law of the land, is empty and unmeaning 
declamation." 

The importance of this decision was at once appre- 
ciated ; and it was reprinted in full by many newspapers 
throughout the country, irrespective of their con- 
currence in its doctrines. The reaction of the public 
was on sectional and political lines. The North and 
the East, where the Bank was less unpopular and 
where its operations had produced less financial dis- 
tress, naturally supported the decision. On the day 
after the delivery of the opinion, Judge Story wrote : 
"It excites great interest, and in a political view is of 
the deepest consequence to the Nation. It goes to 
establish the Constitution upon its great original 
principles." Webster wrote to Story, a few weeks 
later, that the opinion was "universally praised. 
Indeed, I think it admirable. Great things have 
been done at this session." "The Supreme Judicial 
authority of the Nation has rarely, if ever, pronounced 
an opinion more interesting in its views or more im- 



512 THE SUPREME COURT 

portant as to its operation," * said the National Intel- 
ligencer editorially. The Boston Daily Advertiser's 
Washington correspondent wrote: "It is one of the 
most able judgments, I will venture to say, ever de- 
livered in this Court, and when it is read will satisfy 
all minds"; and in the Columbian Centinel, a Wash- 
ington correspondent wrote of the opinion as "drawn 
up with his usual force and sound argumentation. . . . 
I congratulate you on this result, so important to the 
preservation of the Constitution." 2 The Franklin 
Gazette of Philadelphia spoke of the decision as "one 
of primary importance to the interests of the country 
... as, from the acknowledged wisdom and virtue 
of the tribunal whence it emanates, it must be regarded 
as finally and conclusively settling a question which has 
distracted the country more, perhaps, than any that 
has yet been started under the Federal Constitution." 3 
The Philadelphia Union said that : "All these decisions 
are of great interest and importance, both intrinsically 
and as they go to exemplify the salutary and superin- 
tending control which that Court holds over many of 
the acts of the individual States. Though State pride 
may take the alarm at the exercise of this control, we 
cannot but view it as a power very wisely given and 
judiciously vested for the purpose of repressing 
extravagant and selfish acts on the part of the State 
Government." 4 There were also some Southern and 

1 National Intelligencer, March 13, 1819, publishing the opinion in full. Boston 
Daily Advertiser, March 13, 1819; Columbian Centinel, March 13, 1819; Story, I, 
325 ; Webster, XVI. 

2 The New York Gazette of March 10 thus announced the decision, in a Philadel- 
phia dispatch dated March 8 "The important question solemnly decided. We 
have the satisfaction to state that, by express advice from Washington, intelligence 
is received that on Saturday last (March 6) in the Supreme Court, Chief Justice 
Marshall delivered the opinion in the case of McCulloch v. The State of Maryland, 
and that opinion pronounced the Bank of the United States constitutional and de- 
clares all attempts on the part of the State Bank to tax it unconstitutional and void.' 

3 See Independent Chronicle, March 17, 1819. 

4 Quoted in Kentucky Gazette, April 9, 1819, and many other newspapers. 



THE BANK OF THE UNITED STATES 513 

Western newspapers which joined in support of the 
Court. Thus a Virginia paper said : " We have seldom, if 
ever, seen, amongst the number of important questions 
of constitutional law which have been decided by the 
Supreme Judicial authority of the Nation, one of equal 
importance, or one which has been investigated with 
equal talent." A leading Georgia paper said that it was 
"a very interesting adjudication", and that the contest 
between the National and State banks would now go on 
until one or the other was rooted out. "In such a 
struggle, we should hope, as the least of two evils, that 
the Bank of the United States should prevail, for in 
banking, as in government, one tyrant may be better 
endured than two or three hundred." * A leading 
Kentucky paper termed the opinion "the ablest docu- 
ment we recollect to have read of a judicial nature"; 
and it said that: "The mighty arm of the Judiciary 
has interposed its high and almost sacred functions 
for the purpose of giving effect to a provision of the 
Federal Constitution by which Congress are authorized 
to carry into execution expressly delegated powers — 
to preserve the supremacy of the Union over State en- 
croachments, and at the same time not to interfere, in the 
least possible manner, with the legitimate rights of the 
individual States . ' ' Another prominent Kentucky paper 
stated that, whatever sentiments were entertained as to 
the correctness of the decision, it ought to be respected 
and supported by all good citizens, so long as it stood 
unreversed, and that a respect for all the constitu- 

1 Norfolk Herald, March 19, 1819 ; Augusta Chronicle, and Georgia Gazette, March 
31, 1819; Kentucky Gazette, March 26, 1819. In its issue of March 19, 1819, it 
had said: "This interesting decision cannot be too highly appreciated, and it 
will furnish a happy lesson to local politicians against their right to infringe upon 
the National Constitution or upon the laws of Congress. We hope to see no more 
interference by State Legislatures." The Richmond Enquirer, April 26, 1819, 
quoted the Charleston Patriot (S. C.)» and the Kentucky Reporter also as indorsing 
the decision. 

VOL. I — 17 



514 THE SUPREME COURT 

tional departments of the Government was essential 
to the preservation of our republican institutions. ' l The 
opinion embraces the fundamental principles of our 
Government, and must have an important bearing on 
all its operations. It is discussed too in a strong, lucid, 
masterly manner; the constitutionality of a National 
Bank is supported with a strength and fairness of 
reasoning which we have seldom if ever seen surpassed 
and the unconstitutionality of an attempt by the States 
to tax such an institution — if not established to the 
satisfaction of every reader — is at least maintained with 
distinguished ability. ... At all events — whatever 
opinions may be entertained — we trust we shall have no 
forcible resistance to the laws of the United States — no 
contemptuous violations of judicial decisions — no acts 
of hostility to the government of the Union. Let the 
States support their rights, and even their imagined 
rights, with dignity and firmness, but not with intem- 
perance or passion — let them adopt regular constitu- 
tional means, and if these will not avail them, let them 
calmly consider whether the object contended for is of 
sufficient importance to warrant a resort to civil war and 
hazard a dissolution of the Union of States. . . . Let 
us be cautious at least how we resort to mob-law for 
redress." ' 

On the other hand, most of the Southern and Western 
States were violent in their denunciation of the decision. 
It is to be noted, however, that this antagonism to 
the Court arose, not from its exercise of its power to hold 
an Act of Congress invalid, but from its failure so to do. 
It was the support which the Court gave to the wide 
scope of Legislative power and to the authority of 
Congress to charter a National Bank which inspired 
Jefferson and his followers with alarm. They had 

1 Western Monitor (Lexington, Ky.). April 3, 10, 1819. 



THE BANK OF THE UNITED STATES 515 

no fear of the Court as an instrument in restricting 
Congress, but they viewed it with grave concern as 
an instrument of encroachment upon the alleged rights 
of the States. It was in Virginia that, naturally, the 
most serious criticisms were leveled at the decision, 
which, it was noted, had been concurred in by four 
members of the Court appointed by Jefferson and 
Madison. As early as March 24, 1819, Marshall 
wrote to Judge Story that : "Our opinion in the Bank 
case has aroused the sleeping spirit of Virginia, if 
indeed it ever sleeps. It will, I understand, be attacked 
in the papers with some asperity, and as those who 
favor it never write for the publick, it will remain un- 
defended and of course be considered as damnably 
heretical." And on May 27, he wrote again: "The 
opinion in the Bank case continues to be denounced 
by the democracy in Virginia. An effort is certainly 
making to induce the Legislature which will meet in 
December to take up the subject and to pass resolu- 
tions not very unlike those which were called forth 
by the Alien and Sedition Laws in 1799. Whether 
the effort will be successful or not may perhaps depend 
in some measure on the sentiments of our sister States. 
To excite this ferment, the opinion has been grossly 
misrepresented ; and where its argument has been 
truly stated, it has been met by principles one would 
think too palpably absurd for intelligent men. But 
prejudice will swallow anything. If the principles 
which have been advanced on this occasion were 
to prevail, the Constitution would be converted into 
the old Confederation." * Those who led the attack 

1 Mass. Hist. Soc. Proc. 2d Series, XIV. Marshall wrote, under the nom 
de plume of "A Friend of the Union", a long paper supporting his decision against 
Roane's attacks and secured its publication, through Judge Bushrod Washington, 
in the Philadelphia Union, April 24, 1819. See his letters to Story, May 27, 
July 13, 1819, quoted in Marshall, IV, 318 et seq. 



516 THE SUPREME COURT 

in Virginia were Spencer Roane, Judge of the Court 
of Appeals (writing in the newspapers under the pen 
names of "Hampden" and "Amphictyon"), 1 Thomas 
Jefferson, James Madison and Thomas Ritchie, the 
editor of the Richmond Enquirer. 2 " If such a spirit as 
breathes in this opinion is forever to preside over the 
Judiciary, then indeed it is high time for the State to 
tremble ... all their great rights may be swept away 
one by one," wrote Ritchie. " If Congress can select 
any means which they consider ' convenient ', ' useful \ 
'conducive to ' the execution of the specified and 
granted powers ; if the word ' necessary ' is thus to 
be frittered away, then we may bid adieu to the 
sovereignty of the States ; they sink into con- 
temptible corporations ; the gulf of consolidation 
yawns to receive them. This doctrine is as alarming, 
if not more so, than any which ever came from Mr. 
A. Hamilton on this question of a bank or of any other 
question under the Constitution. . . . The people 
should not pass it over in silence; otherwise this 
opinion might prove the knell of our most important 
State rights. This opinion must be controverted and 
exposed." Again, he wrote that while the Court was 
"a tribunal of great and commanding authority" whose 
decisions were always entitled to the deepest attention, 
and while he was always ready to pay to the Chief 
Justice "that tribute which his great abilities deserved", 
nevertheless, he believed that the opinion in this case 
was ' ' fraught with alarming consequences ' ' , and ' ' threat- 
ened with danger" the rights of the States and of 

1 Spencer Roane, as early as 1793, had held in Kamper v. Hawkins, 1 Va. Cases, 
20 : " My opinion on more mature consideration is changed in this respect, and I 
now think that the Judiciary may and ought not only to refuse to execute a law 
expressly repugnant to the Constitution, but also one which is, by a plain and nat- 
ural construction, in opposition to the fundamental principles thereof." 

2 Richmond Enquirer, March 26, 30, April 2, 13, 16, 23, 26, 30, June 11, 15, 18, 
22, 1819; John P. Branch Historical Papers (1906), (1907). 



THE BANK OF THE UNITED STATES 517 

the people. 1 Roane under the name of "Amphictyon" 
wrote that the principles enounced by the Court 
"tend directly to consolidation of the States and to 
strip them of some of the most important attributes 
of their sovereignty. If the Congress of the United 
States should think proper to legislate to the full extent 
upon the principles now adjudicated by the Supreme 
Court, it is difficult to say how small be the remnant 
of powers left in the hands of the State authorities." 
Madison, writing to Roane, criticized the Chief Justice 
for laying down any general doctrine, and for deciding 
more than the single question then before him. "The 
occasion did not call for the general and abstract 
doctrine interwoven with the decision of the particular 
case. I have always supposed that the meaning of a 
law, and for a like reason, of a Constitution, so far as it 
depends on judicial interpretation, was to result from 
a course of particular decisions, and not these from a 
previous and abstract comment on the subject. The 
example in this instance tends to reverse the rule." 
And he deplored the high sanction "given to a lati- 
tude in expounding the Constitution which seems to 
break down the landmarks intended by a specification 
of the powers of Congress, and to substitute for a defi- 
nite connection between means and ends a Legisla- 
tive discretion as to the former to which no practical 
limit can be assigned. ... It was anticipated, I 
believe, by few if any of the framers of the Constitution, 
that a rule of construction would be introduced as 
broad and pliant as what has occurred. And those 
who shared in what passed in the State conventions 
thro' which the people ratified the Constitution, with 
respect to the extent of the powers vested in Congress, 
cannot easily be persuaded that the avowal of such 

1 See Thomas Ritchie (1913), by Charles H. Ambler. 



518 THE SUPREME COURT 

a rule would not have prevented its ratification." 1 
Jefferson wrote to Roane, that he had read his letters 
in the Enquirer "with redoubled approbation", and 
although the election of 1800 had overthrown the old 
Federalist principles of Government, he said, neverthe- 
less, the Judiciary "has continued the reprobated 
system, and although new matter has been occasionally 
incorporated into the old, the leaven of the old mass 
seems to assimilate to itself the new, and after twenty 
years ... we find the Judiciary on every occasion 
still driving us into consolidation. In denying the right 
they usurp of exclusively explaining the Constitution, 
I go further than you do." 2 That Jefferson, however, 
did not mean to deny the power of the Judiciary to 
pass on the validity of the statute is seen from the 
fact that he deplored its failure to hold the Bank 
charter unconstitutional. His position was now the 
same as twenty years previous, namely, that the Leg- 
islative and Executive branches of the Government 
were not obliged to accept the Court's decision, but 
that each "has equally the right to decide for it- 
self what is its duty under the Constitution." The 
opposition of Virginia finally culminated in Decem- 
ber, 1819, when, in the House of Delegates, a paper of 
instructions to the United States Senators, Barbour 
and Pleasants, was introduced and referred to the 
Committee of the Whole, stating that the Legislature 
had seen the recent decision "with much concern and 
alarm" ; and that the powers attributed to the General 
Government are "eminently calculated to undermine 
the pillars of the Constitution itself, and to sap the 
foundations and rights of the State Governments." 
It expressed a "most solemn protest" against the de- 

1 Madison, VIII, letter of Sept. 2, 1819. 

2 Jefferson, XII, letter of Sept. 6, 1819. 



THE BANK OF THE UNITED STATES 519 

cision and the principles contained in it; and recom- 
mended the creation of a new tribunal to adjudicate 
questions involving State and Federal powers. These 
resolutions were in substance adopted, February 12, 
1820 ; and a resolution on the then pending Missouri 
Compromise, enouncing similar views, was also passed. 

Other States of the South joined in Virginia's views. 
A Mississippi newspaper said that: "The last vestige 
of the sovereignty and independence of the individual 
States composing the National Confederacy is obliter- 
ated at one fell sweep. But we know not that it 
matters much, for our privileges as a people have been 
of late so frittered away that we may as well inter at 
once the form of a Constitution, of which the spirit 
has been murdered. In truth, the idea of any coun- 
try's long remaining free, that tolerates incorporated 
banks, in any guise or under any auspices, is altogether 
delusive." 1 A Tennessee paper said that: "This 
Court, above the law and beyond the control of public 
opinion, has lately made a decision that prostrates 
the State sovereignty entirely. The extraordinary 
determination to prevent the States taxing the capital 
of the United States Bank, and the decree declaring 
the State insolvent laws unconstitutional has awakened 
public attention to the aristocratical character of the 
Court, and must sooner or later bring down on the mem- 

1 Natchez Press, quoted in Niles Register, XVI, May 22, 1819 ; Nashville Clarion, 
quoted in Scioto Gazette, April 16, 1819; Georgia Journal, April 6, 13, 1819; Argus 
of Western America (Ky.), March 26, April 16, 1819, and passim in May and June, 
1819; the Philadelphia Gazette said editorially: "The decision of the Supreme 
Court as related to the Bank of the United States will no doubt excite a strong 
sensation in some of the Western States. It is from that quarter principally 
that the greatest hostility to that institution has proceeded, and it is in that quarter 
if the Bank were disposed to retaliate on the Seminole principle, the greatest distress 
and moneyshed would take place. Kentucky and Tennessee, foremost in ranks 
of heroes and patriots, would be the last in the march of specie payments. Let 
them, therefore, honorably unite in supporting the measures and decisions of the 
constituted authorities. They have everything to fear from acts of violence; 
they have everything to expect from discreet and moderate measures." 



520 THE SUPREME COURT 

bers of it the execration of the community. . . . We 
are consoled with the idea that the public opinion will 
not support the Supreme Court. Our government is 
made for the people, not the people for governors.'' 
A Georgia paper viewed the situation as critical, and 
said that the opinion "exhibited an unusual appear- 
ance upon our political horizon, and if not big with dis- 
aster, at least alarming in aspect. It is not the only 
omen that has lately hung upon our view, foreboding mis- 
chief to the State Sovereignties ; and a warning voice can- 
not be raised too soon or too loud to awaken the States to 
a sense of their danger ; when another military Chief- 
tain shall with impunity openly insult the Governor of 
a State ; when another new State shall be rejected from 
the Union unless trammeled and restricted, and when an- 
other Supreme Court shall sit in judgment on the State 
laws, depend upon it, the crisis is at hand ; the modera- 
tion of a generous and forbearing people will be tried 
to the bottom." A Kentucky paper said that the princi- 
ples of the decision "must raise an alarm throughout 
our widely-extended empire. They strike at the roots 
of State-Rights and State Sovereignty. . . . The Na- 
tional Government is again encroaching on the right of 
the States and the people. There must be a fixed or 
determined resistance of these encroachments, not of 
arms, but of the moral energy of a free people" ; and 
it expressed its fear lest in the future, whatever was 
thought "convenient by Congress" would become con- 
stitutional. "Some excuse, some pretence of con- 
veniency in carrying into effect specified powers may 
be found to justify the incorporation of companies 
with a monopoly of trade, of individuals for the purpose 
of farming out the revenues, of companies for the 
purchase of public lands, and perhaps even of a National 
church to correct and maintain morality among the 



THE BANK OF THE UNITED STATES 521 

people, without which none of the specified powers of 
the Constitution could be carried into effect." Ohio 
newspapers were particularly violent in their denial 
of the doctrines advanced by the Court. 

In South Carolina, such extreme fear of the Bank 
and of the results of the decision on the McCulloch 
Case was expressed by counsel, Robert Y. Hayne, 
and William H. Drayton, in a noted case argued in 
the spring of 1819, that a dissenting Judge, in giving 
his opinion, felt called upon to controvert the need for 
such alarm : * 

The strong ground on which the motion is attempted to 
be supported appears to me to be, that this is a great monied 
monopoly, which, in the hands of the General Government, 
will become a gulph, in the vortex of which every minor insti- 
tution will be swallowed up. It has been compared to the 
lever of Archimedes by which the Constitutions of the 
States may be overturned. But here the maxim well applies, 
that with the policy of the measure, we have nothing to do. 
. . . But why this alarm at the exercise of the legitimate 
powers of the General Government. The jealousy of the 
States is ample security against an invasion of their rights, 
and they have ample means to prevent or resist it. If the 
powers of Congress are too great, they may be abridged by 
an amendment of the Constitution. If they are abused, they 
may be corrected by a change of representation. If they 
are exceeded, they may be controlled by the Judiciary. 
But to give to one Government the power of passing laws, 
and to another the right to resist them or defeat their 
operations . . . would necessarily lead to a contest for power. 

The opposition, however, was not confined to the 
South and the West. A leading Democratic newspaper 
in New Jersey said: "If Congress may incorporate 
banking companies, notwithstanding the want of specific 
constitutional authority, and in defiance of the general 
constitutional prohibition, we scarcely know what they 

1 Bvlow v. City Council of Charleston, 1 Nott and McCord, 527. 



522 THE SUPREME COURT 

may not do ! And if the Supreme Court of the United 
States may thus confirm and establish questionable 
Acts of Congress and annul deliberate Acts of the in- 
dividual States, we frankly acknowledge we see noth- 
ing to prevent a gradual invasion of State right, an 
ultimate annihilation of State sovereignties, and a 
consequent accumulation of all Legislative, Executive 
and Judicial powers in the hands of the General Govern- 
ment." And Niles Register in Maryland delivered a 
long series of attacks upon the decision which were 
republished in papers throughout the country. 1 It 
early termed the opinion "a total prostration of the 
State-Rights and the loss of the liberties of the Nation", 
and said that: "A deadly blow has been struck at 
the Sovereignty of the States, and from a quarter so far 
removed from the people as to be hardly accessible to 
public opinion. . . . Nothing but the tongue of an 
angel can convince us of its compatibility with the 
Constitution. . . . Far be it from us to be thought as 
speaking disrespectfully of the Supreme Court, or to 
subject ourselves to the suspicion of a contempt of it. 
We do not impute corruption to the Judges, nor 
intimate that they have been influenced by improper 
feelings, — they are great and learned men; but still, 
only men. . . . We are awfully impressed with a 
conviction that the welfare of the Union has received a 
more dangerous wound than fifty Hartford Conventions, 
hateful as that assemblage was, could inflict, — reach- 
ing so close to the vitals as seemingly to draw the 
heart's blood of liberty and safety, and which may be 
wielded to destroy the whole revenues, and so do 
away the sovereignties of the States. . . . The prin- 
ciples established . . . are far more dangerous to the 

1 See Scioto Gazette, and Liberty Hall and Cincinnati Gazette, April 30 t 1819 ; 
Niles Register, XVI, March 13, 1819, and see pp. 41 et seq., 46, 65, 103, 145, 
March 13, 20, April 3, 24, 1819. 



THE BANK OF THE UNITED STATES 523 

Union and happiness of the people of the United States 
than anything else that we ever had to fear from 
foreign invasion. A judicial decision which threatens 
to annihilate the sovereignties of the States ; which 
will sanction any species of monopoly and make the pro- 
ductive many subservient to the unproductive few, — 
it creates a most disgusting monopoly. The reasoning 
of the opinion exhibits a catching at words, and an 
establishment of facts by implication, with a Sibylline 
mystery thrown over things hitherto supposed to be 
very comprehensible, embellished too with a lawyer-like 
pleading that we wish had been dispensed with." 

In the General Advertiser, in Philadelphia, there 
also appeared an editorial which criticized even the 
ability of Marshall's opinion, a quality which his bitter- 
est opponents elsewhere had never challenged: "Any 
man, who is conscious of his own virtue and possessing 
a plain understanding, who will take up the opinion 
of Chief Justice Marshall on the Bank, will find a most 
lamentable sophistry, a most lame and impotent logic, 
and such a production, as we must say, because we 
most solemnly think it, the most flimsy and false 
attempt at reasoning that can be found in the annals 
of any nation. Whether it be worth the while to 
take it up and analyze it, we are unable at this moment 
to form a judgment ; that it requires little pains to 
penetrate the monstrous tissue of weaknesses of which 
it is composed and which, like a net, presents only slight 
lines, whereby the general vacancy is seen through them, 
is most certain." The same paper further published 
a series of letters signed " Brutus" containing the most 
savage onslaught made anywhere, of which the following 
is an illustration : 1 

1 General Advertiser, March 17, 23, 1819; and see letters of "Brutus", March 
22, 26, 29, 31, April 2, 1819. See also letter of "Hancock", March 25, defending 



524 THE SUPREME COURT 

To say that we anticipated some novelty of reasoning, or 
some fresh discovery of occult relations in the arcana of 
corruption, and that we were of course not disappointed, 
would be saying little ; for this at least was to be expected, 
from a Court composed of such aristocratical principles 
and forming an essential part of the prevailing system of 
impure power and exorbitant ambition. But we did most 
firmly expect to behold this important, this solemn, this 
awful subject, treated in a dignified, a skilful and a scientific 
manner ; although we never cherished the feeblest hope that 
impartiality, liberty, or reason, would characterize its 
discussion or bias its determination. . . . The temper of 
high toned aristocracy, long known to pervade the bench of 
this Court, would necessarily preclude even a calculation as 
to the impartial, rigorous and comprehensive consideration 
of this fundamental article of American freedom. And the 
opinion of that tribunal now before the world is a perfect 
model of that prejudiced judgment and ex parte consideration 
of a subject that springs from a predetermined resolution to 
accomplish a desired object, which shows but one side of the 
question, views but one relation of the principles in contro- 
versy, and studiously avoids all allusion to the most essential 
and the principal leading features in the discussion. — The 
foundation of social obligation — The Purpose of Government — 
The Rights of the People — and The Liberty of the States. 
These principles and rights are rigorously excluded from all 
consideration in this argument ; and the power, the author- 
ity, and the supremacy of the Federal Government is made 
the irreferable authority, the original source, and the sole 
origin, and the despotic arbiter of a question which chal- 
lenges and denies the extent of that supremacy of power , that 
unresisting vigor of authority. . . . Never was a bad 
cause worse supported by constellated talents, learning, 
and wisdom of a Bench of Supreme Judges. It seems as if 
nature had revolted from the debasing task assigned them ; 
and that their reason and their judgment had forsaken them, 
upon an instinctive horror and disgust for the destructive 
purposes they were pledged to fulfil, in defiance of all human 

the Court against the charge that "one of the fundamental rights of the State 
Constitutions has been wrenched from their hands by an arbitrary decree of corrupt 
power" ; see also editorials, March 17, 23, 24. 



THE BANK OF THE UNITED STATES 515 

rights, human joys, and divine commandments. I feel a 
pang of despair for my country, when I think of the tyran- 
nical purpose for which they pronounced their false judgment 
upon this subject, but I blush for its fame, in addition to this 
feeling, when I reflect on the flimsy and contemptible defence 
thus set up in support of a bad and destructive engine of 
power. 

Criticism, so wild and so violent, undoubtedly 
defeated its own purpose; and the country at large 
declined to believe that the predicted disasters to its 
form of constitutional government would follow from 
the decision. As the Southern Patriot, a Federalist 
paper in Charleston, conservatively said: "The ten- 
dency of the language applied by some of the public 
journals to the late decision is to create unnecessary 
alarm in the public mind. The entire ruin and prostra- 
tion of the State government is the sombre prophecy of 
those who regard the principles of this decision with 
a sort of patriotic horror, and whose fancies seem startled 
by an empty phantom. We behold not the smallest 
ground for all this apprehension and evil augury." l 

Of the evil effect of the decision upon the financial 
conditions of the country, there was more ground 
for fear ; and a very strongly supported movement 
arose for the adoption of a Constitutional Amendment 
to confine National Banks to the District of Columbia. 
The Pennsylvania Legislature passed a resolution ask- 
ing Congress for such an Amendment ; and Tennessee, 
Ohio, Indiana and Illinois formally approved the 
request. The Legislatures of Virginia, South Caro- 
lina and New York also considered the question. 
Senator Logan of Kentucky introduced in the Senate, 
December 28, 1819, a resolution to this effect : 2 

1 Reproduced in National Intelligencer, April 22, 1819. 

2 16th Cong., 1st Sess., Dec. 28, 1819, Jan. 4, 5, 26, Feb. 16, 1820, in the Senate; 
Jan. 31, 1820, in the House. 



526 THE SUPREME COURT 

Resolved, that as the content and happiness of the people 
cannot be expected, under collisions and the want of harmony 
between their governments, that, therefore, the Committee 
on the Judiciary be instructed to inquire whether provisions 
may not be duly made by law for the removal, from any 
State, of the branches of the Bank of the United States, upon 
the request of the Legislature of such State ; except during 
those periods of war, when the public good and the exigencies 
of the nation shall otherwise require. 

And in debate, he said: "Whithersoever we look, 
whether to the East or to the West, to the North or 
to the South, we are presented with some portending 
events, connected with this subject, of an unfavorable 
aspect. Why, therefore, hesitate to leave with the 
State Governments and your banks to make their own 
bargain, or otherwise provide for their withdrawal, 
in order to save the peace and tranquility of society ? 
If they can harmonize, you may then expect it; and, 
if they cannot, why continue the spirit of discordance, 
to the great detriment of governmental unity and 
friendly understanding ?" Congress, however, took no 
action. 

It remained for the State of Ohio to take definite 
action in opposition to the Court and its decision, and 
to translate its hostile sentiments into action. No- 
where had the newspaper criticism been more violent 
than in that State. One paper, in an editorial headed 
"The United States Bank — Everything ! The Sov- 
ereignty of the States — Nothing!" termed the de- 
cision of the Federal Court of Kentucky, 1 enjoin- 
ing the collection of the Kentucky tax on the Bank, 
"Usurpation No. 1 " ; and the decision of the McCulloch 

1 Feb. 26, 1819, Judges Todd and Trimble in the Federal Circuit Court at Lexing- 
ton, Ky., had enjoined proceedings under the Kentucky tax law until the regular 
session in May, and until the Supreme Court should decide the Maryland 
case. See editorial in Western Monitor, March G, 1819. 



THE BANK OF THE UNITED STATES 527 

Case, "Usurpation No. 2", and said: "This monster 
of iniquity is to be saddled upon us. The people of the 
West are to be taxed by an incorporation unknown 
to our Constitution, and only known to us by its 
oppressive and vindictive acts, as being the means 
by which the bread of industry has been taken from the 
poor and given to the rich, by which our manufactories 
have been paralyzed, and the introduction of foreign 
luxuries promoted, by which our precious metals have 
been collected and transported from among us, and 
by which the best of our local banks have been 
driven to the necessity, either of adding to the ruin 
and desolation it has produced by calling in their debts, 
or sacrificing their own credit and reputation by ceas- 
ing to redeem their notes on demand. " * Another 
prominent paper said that while it had "no dis- 
position to quarrel with the legitimate expounders 
of the Constitution and laws of the Union", and 
while the arguments of the Chief Justice appeared to 
be conclusive, nevertheless, clearly, "if some expressions 
in the Constitution are not rendered more definite 
by amendments, there is danger of a concentration 
of powers in the General Government that will sooner 
or later crush the State sovereignties". . . "It is 
apparent that great dissatisfaction prevails respecting 
this decision, and we should not be surprised if the 
Court should be called upon to revise it, by the per- 
severance of some of the States in asserting their 
claim to the right of taxation. " 2 

1 Western Herald and Steubenville Gazette, March 20, 1819. 

2 Liberty Hall and Cincinnati Gazette, April 2, 13, 1819. Charles Hammond, 
a leading Ohio lawyer wrote, ibid., April 6, 1819 : "I have never yet seen or heard 
an argument advanced in support of the principles of the decision, that appeared 
to me worthy of refutation. If, however, the country must be prostrated at the 
feet of an overbearing stock-jobbing aristocracy, I most earnestly wish that all may 
be satisfied that the outrage is warranted by the Constitution. Should the reason- 
ing of the Court fail in giving this general satisfaction, I hope the freemen of Ohio 



528 THE SUPREME COURT 

Opposition to the Court's decision in Ohio, however, 
was based not so much on political or legal grounds as 
on the financial and economic conditions then existing. 1 
No State had suffered more in 1818 from wild inflation 
and commercial failures than had Ohio ; and the 
Legislature, attributing all its financial distress to the 
operation of the Bank, had enacted, on February 8, 
1819, an exceedingly stringent act, imposing an annual 
tax of $50,000 on each branch of the Bank. 2 In 
spite of the decision of the McCulloch Case in March, 
the State at once determined to disregard it, claiming 
that the case had been a fictitious one, based on agreed 
facts which were not binding in Ohio, manufactured 
for the purpose and hurried up to the Supreme Court 
for the purpose of saving the Bank "then on the brink 
of destruction", from the effects of its "extravagant 
and fraudulent speculations." "At this critical junc- 
ture of its affairs," said Ohio officials, "it was a 
manoeuvre of consummate policy to draw from the Su- 
preme Court a decision that the institution itself was 
constitutionally created, and that it was exempt from 
the taxing power of the States. This decision served 
to prop its sinking credit ; and if it inflicted a danger- 
ous wound upon the authority of the States, this 
might be but a minor consideration. It is truly an 
alarming circumstance, if it be in the power of an 
aspiring corporation and an unknown and obscure indi- 
vidual, thus to elicit opinions, compromitting the vital 

feel enough of the spirit of independence to afford the Judges an opportunity of 
reviewing their opinion. It is time enough to succumb when the Western States 
have been heard, and when their rights have been decided upon in a case where 
they are themselves parties." See also Scioto Gazette, April 8, 1819. 

1 See Banking and Currency in Ohio before the Civil War (1915), by C. C. Hunt- 
ington, 313 et seq. 

2 Law of Feb. 8, 1819. Under this act, the State Auditor was authorized in 
collecting the tax to go into every room, vault, and other place in the branch 
Bank and to open every chest or receptacle in search of whatever might satisfy 
the warrant. 



THE BANK OF THE UNITED STATES 529 

interests of the States that compose the American 
Unions l 

As it was evident that the State was intending to 
enforce its law, regardless of the Court's decision in 
the Maryland case, the Bank sought protection of its 
rights, by filing a bill in equity in the Federal Circuit 
Court, September 11, 1819, four days before the date 
when the law authorized the tax levy ; and it obtained 
a temporary injunction against Osborn, the State 
Auditor. Considering the service of the injunction 
to be imperfect, Osborn ignored it and delivered the 
tax warrant to his assistant, John L. Harper, who, 
on September 17, went to the branch office of the 
Bank, and, after demanding and being refused pay- 
ment of the tax, entered the vaults, and took away 
whatever specie and notes he could find, amounting 
to $120,475. News of this high-handed proceeding 

1 See Report of the Committee of the Ohio Legislature, Dec. 12, 1820 : "Upon 
the promulgation of this decision (McCulloch v. Maryland), it is maintained that 
it became the duty of the State and its officers to acquiesce, and treat the act of the 
Legislature as a dead letter. The Committee have considered this position, and 
are not satisfied that it is a correct one. . . . This case . . . was an agreed case, 
made expressly for the purpose of obtaining the opinion of the Supreme Court of 
the United States upon the question whether the States could constitutionally 
levy a tax upon the Bank of the United States. This agreed case was manufactured 
in the summer of the year 1818, and passed through the County Court of Baltimore 
County, and the Court of Appeals of the State of Maryland in the same season, 
so as to be got upon the docket of the Supreme Court of the United States for 
argument at their February Term, 1819. It is only by management and con- 
currence of parties that causes can be thus expeditiously brought to a final hearing 
in the Supreme Court." 

The same view was maintained in the Steubenville Herald, quoted in Niles 
Register, XVII, Oct. 30, 1819 : "If a case decided, an agreed case, — in which this 
State is not a party, can be considered binding upon this State, if such decision 
is to suspend the force and operation of our laws legally, regularly and constitutionally 
enacted, what are our boasted privileges ? . . . We complain that in the case of 
McCulloch v. Maryland, matters have been conceded by the latter, or rather, many 
of the strongest grounds were relinquished or not brought into view, on which this 
State meant to reply. The State of Ohio does not admit that a case between any 
two parties, collusively or ignorantly agreed upon, is or ought to be binding on 
any other party." 

On the other hand, the Scioto Gazette, Feb. 28, 1824, repelled this insinuation 
"artfully thrown out that the case of McCulloch against Maryland was got up and 
decided on fraud, an insinuation which is not warranted by the facts." 



530 THE SUPREME COURT 

reached the Bank's lawyers at once ; and they quickly 
completed service of the injunction on Harper, as 
well as on Osborn, on September 18. In direct 
disregard of the injunction, however, Harper con- 
tinued on his way to Columbus in his wagon with 
the cash and notes, and conveyed them to the State 
Treasurer. 1 

Thus the State of Ohio was placed, through her high 
State officials, in direct contempt of an order of the 
Federal Circuit Court, as well as in a position of refusal 
to conform to the principles laid down in a decision of 
the Federal Supreme Court. 

When the news of this lawless proceeding reached 
the East, it caused immense excitement. Langdon 
Cheves, President of the Bank, wrote to Secretary of 
the Treasury Crawford, in protestation: "The out- 
rage . . . can be rarely paralleled under a Government 
of Law ; and, if sustained by the higher authorities 
of the State, strikes at the vitals of the Constitution." 
The Eastern newspapers were almost unanimous in 
condemnation. 2 The New York Gazette said: "Public 
opinion is pretty freely expressed concerning it. It 
is palliated in no Atlantic papers that we have seen, 
except the Richmond Enquirer." "The spirit of the 
Hartford Convention seems to have been translated 
to Ohio," said the Franklin Gazette. "The authors 
and abettors of this measure have much to answer 

1 See accounts from the Chillicothe Supporter, of September 22, and October 20, 
1819, and the Ohio Monitor, of September 25, quoted in Niles Register, XVII, for 
October, November and December, 1819; and see Niles Register, Oct. 7, 1820. 

2 New York Gazette, Oct. 26, 1819 ; Franklin Gazette, quoted in Washington 
Gazette, Feb. 23, 1821 ; Niles Register, Oct. 2, 1819. National Intelligencer, Sept. 30, 
Oct. 13, 23, 25, Nov. 5, 6, 1819. The National Advocate (N. Y.), quoted in ibid., 
Oct. 11, said : "We cannot avoid saying that Ohio has set a very discreditable example 
to the Union, which, if it should be followed, would render our institutions null 
and void, and shake that confederacy upon which the prosperity of the whole so 
much depends. . . . We trust that the State of Ohio will retrace her steps and 
prevent an adoption of coercive measures, by doing what is substantially right." 



THE BANK OF THE UNITED STATES 531 

for," said the National Intelligencer. Even Niles 
Register, a, pronounced adherent of States-Rights doc- 
trine, and a consistent and active opponent of the 
Bank, declined to countenance the Ohio situation, 
saying editorially that: "Much as we are opposed to 
the principle and operation of the Bank of the United 
States — decided as we are in the opinion that Congress 
transcended its authority by incorporating it, and con- 
vinced also that the decision of the Supreme Court 
in the case of McCulloch v. the State of Maryland was 
wrong, yet believing that the States have a right to 
tax this institution and its branches — still we regret 
this act of Ohio. It is not for any of the States, much 
less individuals, to oppose force to the operations of 
the law, as settled by the authorities of the United 
States, however zealous we may be to bring about a 
different construction of it, through persons legally 
vested with power according to the Constitution to 
act in our name and in our behalf." A week later, 
it stated that the steps on the part of Ohio were very 
serious, and that a better plan would be for all States 
to submit, and to adopt a Constitutional Amendment 
against the right of the United States to incorporate 
banks. The Southern press, in general, refused to sup- 
port Ohio's " rebellious conduct." A Georgia paper said : 
"It manifests a disregard to the union and harmony of 
the States, and a contemptuous defiance of the supreme 
constitutional authorities of the Republic. . . . When 
will the precise limits of the Federal powers be defined 
and permanently established, and when will the en- 
croachments of the States upon the General Govern- 
ment cease ?" A South Carolina paper said : "If one 
act of resistance of this kind admits of being palliated, 
on the ground that Congress has passed an unconstitu- 
tional law and the Supreme Court has sanctioned it, 



532 THE SUPREME COURT 

why may not every act of resistance admit of the same 
defence ? " l 

On the other hand, the newspapers of Ohio were 
almost unanimous in upholding the action of the 
State authorities. 2 "In her controversy with the 
association of Pawn-brokers, nicknamed the Bank of 
the United States, the State of Ohio has succeeded in 
placing the dispute upon the proper ground. The 
doctrine of unlimited sovereignty, set up in the Supreme 
Court of the United States in the case of Maryland 
and McCulloch, can now be fairly tested, not by de- 
ciding a case made, but by enforcing those doctrines 
in an actual controversy for the money taken," said 
one. And another said that the State would proceed to 
collect the tax, "the case of McCulloch v. the State of 
Maryland to the contrary notwithstanding. . . . The 
State of Ohio is far from courting a collision with the 
Government of the United States . . . and knows 
when, how and where to draw the distinction between 
the Government and a pack of shavers and money 
changers." A Cincinnati paper said that the affair 
"appears to have created as much consternation as 
if it had been an overt act of treason or rebellion", 
and added : "If the General Government can create a 
monied institution in the very bosom of the States, 
paramount to their laws, then indeed is State sover- 

1 Augusta Chronicle, Georgian, Southern Patriot, quoted in National Intelligen- 
cer, Oct. 23, Nov. 6, 1809. 

2 See New York Evening Post, Oct. 13, 1819 ; Niles Register, XVII, Oct. 2, 9, 30, 
1819. An Ohio correspondent of Niles Register, XVII, Jan. 1, 1820, wrote : "The 
execution of our law has given birth to a great deal of passion and some folly 
in the Eastern newspapers. This has arisen partly from misapprehension 
and partly from the management of agents and tools of the Bank. This mistake, 
which, reverencing the opinion of our Supreme Court, regarded the act of Ohio 
as a species of rebellion is evidence how dear our institutions are to our 
citizens. . . . The Ohio Monitor and Western Herald, two of the most spirited 
and respectable papers in the State, favor the cause. No paper in the State has 
said anything in condemnation, except the Cincinnati Inquisitor and the Muskegon 
Messenger." 



THE BANK OF THE UNITED STATES 533 

eignty a mere name, 'full of sound and fury, sig- 
nifying nothing.' " x 

There were, however, some more conservative men 
in Ohio who regretted the revolutionary attitude of 
the State. "I view the transaction in the most odious 
light, and from my very soul, I detest it. I am ashamed 
it has happened in Ohio," said the Governor, Ethan 
Allen Brown. "Is it not a shoot that has sprung 
from the far-famed Boston opposition and matured 
in the foul mine of the Hartford Convention?" asked 
General Harrison, a candidate for State Senator from 
Cincinnati on an anti-Bank ticket. 

The Bank, refusing to submit to such an infraction 
of its rights, immediately took further steps in Court ; 
it instituted a suit against the State officials for dam- 
ages ; 2 at the same time it pressed its original bill 
for an injunction, and after a lapse of a year, in Sep- 
tember, 1821, it secured from the Circuit Court a final 
decree ordering Osborn and State Treasurer Sullivan 
(Harper's successor) to restore the $100,000 taken 
with interest on $19,830 (the amount of specie in 
Sullivan's hands), and enjoining collection of the tax 
under the statute. 3 As the State Treasurer, however, 
refused to comply with the decree, an attachment for 
contempt was issued against him ; he was committed 

1 Quoted in Banking and Currency in Ohio before the Civil War (1915), by C. C. 
Huntington, 320-322; Western Herald. See for the opposite point of view, 
Cincinnati Inquisitor, quoted in National Intelligencer, Oct. 11, 13, 1819. 

2 For interesting details as to this action of trespass, see Niles Register, XVII, 
Jan. 20, 1820; Crittenden Papers MSS, letter of Francis P. Blair to John J. Crit- 
tenden, Jan. 6, 1821, saying : "Clay is a good deal chagrined at the measures taken 
against the Bank. . . . The trespass case came on to be tried and excited great 
anxiety and curiosity among the people here. The lawyers from every part of 
Ohio came to hear Clay speak, but the Judges differed about the admission of 
certain evidence to the jury, a juror was therefore withdrawn and the cause con- 
tinued, to the infinite mortification of the Legislature, who had given up their hall 
to the Court, and of all the rest of the folks, some of whom had come from a great 
distance." 

3 See Niles Register, XVII, Jan. 20, 1820 ; XIX, Oct. 7, 1820 ; see also Osborn 
v. Ban!: of the United States, in Harv. Law Reo. 9 (1887), I. 



534 THE SUPREME COURT 

to prison; and under a writ of sequestration, Com- 
missioners appointed by the Court took the key of the 
State Treasury from the Treasurer, entered and re- 
moved $98,000. The defendants at once appealed 
from the Circuit Court decree to the United States 
Supreme Court ; and steps were taken to urge an early 
argument. This solution of the critical situation 
commended itself to conservative and patriotic men, 
not only in Ohio, but elsewhere. On the other hand, 
the radical State-Rights advocates regretted that the 
State should so submit herself to the Court, and pressed 
their opposition to the Federal Judiciary with great 
fervor. Their leading newspaper said in a long edi- 
torial on " Judicial Encroachments" : * There is no 
subject, in our opinion, of such great and growing im- 
portance to the people of the United States as the 
conduct of the Judiciary. From the formation of the 
Constitution of the United States until the present 
time, there have been frequent contests between the 
Legislative power and the Courts and Judges, in al- 
most all of which the Judges, contrary to the wishes of 
large majorities of the people, have succeeded in main- 
taining not only all the power respecting the grant of 
which there remained doubts, but have also arrogated 
to themselves an authority as well above the laws as 
above the Constitution itself. . . . The infallibility 
of the Judiciary became during Mr. Adams' Adminis- 
tration, as at this time, the test of attachment to the 
ruling power — proscription was the fate of all who 
dared to raise a doubt as to the orthodoxy of the senti- 
ment. Virginia and Kentucky, always upon the alert 
when the Republic is in danger, openly opposed this 
alarming pretension. . . . Virginia and Ohio now 
occupy the ground assumed by the former State and 
Kentucky. . . . Both these States have to complain of 



THE BANK OF THE UNITED STATES 535 

the infraction of the plain letter of the Constitution of 
the United States by the United States Judiciary, 
in cases where they have, in direct opposition to that 
instrument, been made parties to suits at law — and 
in addition Ohio has to complain of the imprisonment 
of the treasurer, the taking from his pockets the keys 
of the Treasury, whilst so imprisoned, and the entry into 
the Treasury, and violent seizure of moneys therein 
contained, the property of the State ! ! ! If our sister 
States patiently look on and permit scenes of this kind 
to be acted in broad daylight, we may well despair 
of the republic. " * 

Meanwhile, the Legislature of Ohio had taken an 
active part in the controversy. Though the Governor 
advised that the question be allowed to take its own 
course in the Courts, 2 the Legislature viewed the action 
of the Bank in suing the State Auditor as a serious and 
dangerous attack on the rights of a State guaranteed 
by the Constitution; and on December 12, 1820, a 
special Joint Committee of both Houses made an elab- 
orate report, drafted by its Chairman, Charles Ham- 
mond. In this it alleged that the suit against the 
State officials was clearly a suit against the State in 
violation of its constitutional rights, and that "to 
acquiesce in such an encroachment upon the privileges 
and authority of the State, without an effort to defend 
them, would be an act of treachery to the State and 

1 Western Herald and Steubenville Gazette, Sept. 29, 1829. Almost precisely 
similar views were expressed in an editorial in the Washington Gazette, Feb. 23, 
1821. 

2 Niles Register, Jan. 1, 1820, referred thus to the situation: "With the light 
now afforded on the controversy between the State of Ohio and the Bank of the 
United States, no doubt can exist as to its being a simple controversy at law as 
between individuals, which must be settled as all other legal controversies; and 
that the question may be fairly tried, we hope that the State of Ohio will not pass 
any act, or take up any proceeding on the subject, except to authorize the appoint- 
ment of counsel to maintain the rights of the State. When a legal decision is had, 
the State will submit, but not until then, to abandon its claims to tax any species 
of property within it not exempted by the Federal compact." 



536 THE SUPREME COURT 

to all the States that compose the American Union 
itself. " * Further, the Committee denied the right of 
the United States Supreme Court to pass upon the 
constitutionality of a State statute which had been 
upheld by the highest State Court ; and after ex- 
pressing its concurrence with the Kentucky-Virginia 
Resolutions of 1798-1799, and rejecting "the pre- 
tension of the Federal Judges" to be "the sole expos- 
itors of the Constitution", it continued: "So long 
as one single constitutional effort can be made to 
save them, the State ought not to surrender its rights 
to the encroaching pretensions of the Circuit Court." 
After considering the arguments advanced by Chief 
Justice Marshall for the constitutionality of the Mary- 
land statute taxing the Bank, the Committee found 
that these arguments were faulty, and it advised the 
State of Ohio to compromise and pay back the tax, 
only upon the basis of the Bank's consent to withdraw 
from the Courts. If the Bank should refuse this, the 
Committee advised the passage of radical legislation 
depriving the Bank of all rights in the State Courts 
and of all protection by State officers. 'The measures 
proposed," it said, "are peaceable and constitutional; 
conceived in no spirit of hostility to the government 
of the Union, but intended to bring fairly before the 
Nation, great and important questions, which must one 
day be discussed, and which may now be very safely 
investigated." This report was enthusiastically adopted 
by the Legislature, and a stringent statute, completely 
outlawing the Bank, was enacted, January 29, 1821. 2 

1 See Report in lGth Cong., 2d Sess. See also letter of Francis P. Blair to John 
J. Crittenden in Crittenden Papers MSS, written from Columbus, Jan. 6, 1821 : "I 
will endeavor to forward to you a report of both houses of the Legislature. It is 
written by Charles S. Hammond, a leading man here. lie wants honesty and dig- 
nity and has too much cunning." 

2 This statute was modified later by an Act of Feb. 2, 1821, which provided 
that if the Bank would withdraw its suits, remove its branches, and pay 4% of 



THE BANK OF THE UNITED STATES 537 

It is interesting to note that this legislation enacted 
by the Democrats in Ohio withholding State support 
of the Federal law, almost exactly paralleled the stat- 
utes enacted by the Republican party in Ohio and 
other States, thirty years later, and directed against 
cooperation in the enforcement of the Federal Fugi- 
tive Slave Law. 

In addition to this strict statute of outlawry, the 
Ohio Legislature passed a set of resolutions for trans- 
mission to the other States of the Union, recognizing 
and approving the doctrines of Kentucky and Vir- 
ginia Resolutions ; protesting against the doctrine of 
the Federal Circuit Court as violative of the Eleventh 
Amendment of the Constitution ; asserting the right 
of the States to tax the premises and property of any 
private corporation chartered by the Congress of the 
United States ; holding that the Bank of the United 
States was a private corporation, and might legally 
be taxed by the State ; protesting against settlement 
of political rights of the separate sovereign States, in 
a suit in the Supreme Court of the United States 
contrived between individuals, to which the State was 
not a party ; and instructing the Governor to transmit 
this report and resolution to the Legislatures of all 
the States and to the President of the Senate and the 
Speaker of the House of Representatives. 1 With this 
somewhat rebellious step, the State's activity against 

its profits to the State ($2500 to be collected annually, until tbe Bank should report 
its actual dividends), the $90,000 seized would be returned and the provisions of the 
act depriving the Bank of legal protection would be annulled. On July 19, 1821, 
the Federal Circuit Court in Ohio at the suit of the Bank enjoined the State Auditor 
from levying and collecting this new $2500 tax. 

1 See Legislative and Documentary History of the Bank of the United States (1832), 
by N. St. Clair Clarke and D. A. Hall; see also Senate Document, 16th Cong. 
2d Sess. t No. 72. A like communication was at the same time made to the House 
of Representatives and laid on the table; but it does not appear to have been 
printed by their direction; and no further action was taken. For the general 
sentiment of the Eastern States, see a series of twelve articles on Ohio v. The 
Union in the Boston Repertory, March 24-April 26, 1821. 



538 THE SUPREME COURT 

the Bank ceased ; and since the resolutions received 
indorsement from no other State except Virginia and 
Kentucky, and no attention whatever from the Con- 
gress of the United States, excitement over the case 
in Ohio gradually died away, with the return of busi- 
ness prosperity. When, after many delays attendant 
upon its argument in the Court, the case was finally 
decided in 1824, it had become almost wholly a dead 
issue. 1 

Meanwhile, the Court itself had been neither in- 
timidated, dismayed nor deterred by the clamor raised 
against its decisions in cases appealed from State 
Courts under the Twenty-Fifth Section of the Judiciary 
Act ; but while it continued to exercise to the fullest ex- 
tent such jurisdiction in all cases properly before it on 
writ of error to State Courts, it was, nevertheless, ex- 
ceedingly careful to avoid taking jurisdiction unless the 
record clearly showed a state of facts warranting its 
exercise. By this display of a wise caution, it avoided 
considerable friction with the States. An interesting 
illustration of this appeared in Miller v. Nicholls, 4 
Wheat. 311, decided in 1819, a few days after the 
McCulloch Case. This case, which involved a serious 
contest between Pennsylvania and the Federal Govern- 
ment, had been pending in the Court for nine years 
without action. A writ of error to the State Supreme 
Court had been filed in 1809, but the State officials 
had disregarded it and had taken possession of the 
fund in controversy. One Nicholls, a United States 
revenue collector, had executed a mortgage to the 
United States on which a judgment had been obtained, 
and levied on, and the proceeds deposited in the State 
Court; later, the State had obtained a judgment, 

1 For the most accurate, thorough and discriminating account of this Ohio 
controversy, see Taxation of the Second Bank of the United States by Ernest 
L. Bogart, Amer. Hist. Rev. (1912), XVII. 



THE BANK OF THE UNITED STATES 539 

based on a prior lien granted by a State statute, which 
it sought to collect out of the deposited funds ; the 
United States and the State were thus brought into 
conflict, the United States claiming that by an Act of 
Congress it had a prior lien on funds of an insolvent. 1 
The Court now, by Chief Justice Marshall, decided 
that the writ of error must be dismissed, inasmuch as 
(through careless pleading) the fact of insolvency 
had not appeared on the record, and the record did 
not show that any Act of Congress was applicable to 
the situation. The extreme desire, both of the Court 
and of President Madison's Administration, to avoid 
conflicts between the Federal Judiciary and the State 
authorities was interestingly shown by this decision, 
as well as by the attitude of Attorney-General Wirt 
in this case and also in a case in Maryland, in which 
the Federal and the State Courts had clashed. As to 
the former case, Wirt's position was described by 
John Quincy Adams as follows : 2 

Mr. Wirt has two faults which may have an influence in 
the affairs of this Nation — an excessive leaning to State 
supremacy, and to popular humors. He asked me to nego- 
tiate an arrangement this day with the State of Pennsylvania, 
about a delinquent debtor, both to the United States and 
the State of Pennsylvania. The United States marshal 
took his property in execution and the Pennsylvania sheriff 
took it from the marshal. The question was now, he said, 
before the Supreme Court, and he was afraid the decision 
would be in favor of the United States. Pennsylvania 
was indignant at being summoned before the Court, and 
refused to appear. I asked him what the Department of 
State had to do with the affair. He did not know. As a 
delinquent debtor, I said, his case belonged to the Treasury 
Department. He replied that the Treasury could not 
relinquish the debt. "Nor," said I, "can the Department 
of State." He said if the decision should be in favor of the 

1 Supra, 371-374. 2 J. Q. Adams, IV, April 28, 1818. 



540 THE SUPREME COURT 

United States, it would certainly stir up a dust ; which, I told 
him, we could not help. 

As to the Maryland case, involving an attempt by a 
State Court to replevy goods which had been seized 
by Federal officers for violation of the custom laws, 
Wirt presented his views in an official opinion as 
Attorney-General, in which he advised that "through 
respect to the authority of the State Court of Maryland, 
a motion be made, on the return of the writ of replevin, 
to quash it — as these goods are in possession of the 
Court of the United States and in regular course of 
adjudication. It is not conceivable that a Court of 
the State of Maryland would under these circumstances 
permit its process to be abused, for the purpose of rais- 
ing an unconstitutional conflict with the authority of 
another tribunal which is in the previous possession 
of the subject. The collector is bound by his duty 
to the Court of the United States, whose officer he is 
quoad hoc, to keep the property safe to meet the final 
sentence of that Court. He could not, therefore, open 
it to the service of the writ of replevin without, a vio- 
lation of his duty. And no mode occurs of getting 
rid of the embarrassment produced by that writ, which 
is so effectual, and at the same time, so respectful to 
the State authorities, as that which I have had the 
honor to suggest. " * 

These two episodes well illustrate the anxiety which 
prevailed over the steadily increasing conflicts between 
Federal and State authority. 

1 Opinion of Wirt, March 22, 1819, 26th Cong., 2d Srss., House Doc. No. 123, 189. 
This opinion is not published in the official Ops. Attys.-Gen. t I. 



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